Attached files
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S-1/A - ATOSSA THERAPEUTICS, INC. | v201544_s1a.htm |
EX-3.2 - ATOSSA THERAPEUTICS, INC. | v201544_ex3-2.htm |
EX-23.1 - ATOSSA THERAPEUTICS, INC. | v201544_ex23-1.htm |
EX-10.16 - ATOSSA THERAPEUTICS, INC. | v201544_ex10-16.htm |
EX-10.18 - ATOSSA THERAPEUTICS, INC. | v201544_ex10-18.htm |
EX-10.19 - ATOSSA THERAPEUTICS, INC. | v201544_ex10-19.htm |
EX-10.17 - ATOSSA THERAPEUTICS, INC. | v201544_ex10-17.htm |
EXHIBIT
3.4
AMENDED
AND RESTATED
BY-LAWS
OF
ATOSSA
GENETICS INC.
(the
“Corporation”)
ARTICLE
I
Stockholders
SECTION
1. Annual
Meeting. The annual meeting of stockholders (any such meeting
being referred to in these By-laws as an “Annual Meeting”) shall be held at the
hour, date and place within or without the United States which is fixed by the
Board of Directors, which time, date and place may subsequently be changed at
any time by vote of the Board of Directors. If no Annual Meeting has been
held for a period of thirteen (13) months after the Corporation’s last Annual
Meeting, a special meeting in lieu thereof may be held, and such special meeting
shall have, for the purposes of these By-laws or otherwise, all the force and
effect of an Annual Meeting. Any and all references hereafter in these
By-laws to an Annual Meeting or Annual Meetings also shall be deemed to refer to
any special meeting(s) in lieu thereof.
SECTION
2. Notice of Stockholder Business and
Nominations.
(a) Annual Meetings of
Stockholders.
(1) Nominations
of persons for election to the Board of Directors of the Corporation and the
proposal of other business to be considered by the stockholders may be brought
before an Annual Meeting (i) by or at the direction of the Board of Directors or
(ii) by any stockholder of the Corporation who was a stockholder of record at
the time of giving of notice provided for in this By-law, who is entitled to
vote at the meeting, who is present (in person or by proxy) at the meeting and
who complies with the notice procedures set forth in this By-law as to such
nomination or business. For the avoidance of doubt, the foregoing clause
(ii) shall be the exclusive means for a stockholder to bring nominations or
business properly before an Annual Meeting (other than matters properly brought
under Rule 14a-8 or Rule 14a-11 (or any successor rules) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), and such stockholder
must comply with the notice and other procedures set forth in Article I, Section
2(a)(2) and (3) of this By-law to bring such nominations or business properly
before an Annual Meeting. In addition to the other requirements set forth
in this By-law, for any proposal of business to be considered at an Annual
Meeting, it must be a proper subject for action by stockholders of the
Corporation under Delaware law.
(2) For
nominations or other business to be properly brought before an Annual Meeting by
a stockholder pursuant to clause (ii) of Article I, Section 2(a)(1) of this
By-law, the stockholder must (i) have given Timely Notice (as defined below)
thereof in writing to the Secretary of the Corporation, (ii) have provided any
updates or supplements to such notice at the times and in the forms required by
this By-law and (iii) together with the beneficial owner(s), if any, on
whose behalf the nomination or business proposal is made, have acted in
accordance with the representations set forth in the Solicitation Statement (as
defined below) required by this By-law. To be timely, a stockholder’s
written notice shall be received by the Secretary at the principal executive
offices of the Corporation not later than the close of business on the ninetieth
(90th) day nor earlier than the close of business on the one hundred twentieth
(120th) day prior to the one-year anniversary of the preceding year’s Annual
Meeting; provided, however, that in the
event the Annual Meeting is first convened more than thirty (30) days before or
more than sixty (60) days after such anniversary date, or if no Annual Meeting
were held in the preceding year, notice by the stockholder to be timely must be
received by the Secretary of the Corporation not later than the close of
business on the later of the ninetieth (90th) day prior to the scheduled date of
such Annual Meeting or the tenth (10th) day following the day on which public
announcement of the date of such meeting is first made (such notice within such
time periods shall be referred to as “Timely Notice”). Notwithstanding
anything to the contrary provided herein, for the first Annual Meeting following
the initial public offering of common stock of the Corporation, a stockholder’s
notice shall be timely if received by the Secretary at the principal executive
offices of the Corporation not later than the close of business on the later of
the ninetieth (90th) day prior to the scheduled date of such Annual Meeting or
the tenth (10th) day following the day on which public announcement of the date
of such Annual Meeting is first made or sent by the Corporation. Such
stockholder’s Timely 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 Exchange Act (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 each Proposing Person (as defined
below);
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(C) (i)
the name and address of the stockholder giving the notice, as they appear on the
Corporation’s books, and the names and addresses of the other Proposing Persons
(if any) and (ii) as to each Proposing Person, the following information: (a)
the class or series and number of all shares of capital stock of the Corporation
which are, directly or indirectly, owned beneficially or of record by such
Proposing Person or any of its affiliates or associates (as such terms are
defined in Rule 12b-2 promulgated under the Exchange Act), including any shares
of any class or series of capital stock of the Corporation as to which such
Proposing Person or any of its affiliates or associates has a right to acquire
beneficial ownership at any time in the future, (b) all Synthetic Equity
Interests (as defined below) in which such Proposing Person or any of its
affiliates or associates, directly or indirectly, holds an interest including a
description of the material terms of each such Synthetic Equity Interest,
including without limitation, identification of the counterparty to each such
Synthetic Equity Interest and disclosure, for each such Synthetic Equity
Interest, as to (x) whether or not such Synthetic Equity Interest conveys any
voting rights, directly or indirectly, in such shares to such Proposing Person,
(y) whether or not such Synthetic Equity Interest is required to be, or is
capable of being, settled through delivery of such shares and (z) whether or not
such Proposing Person and/or, to the extent known, the counterparty to such
Synthetic Equity Interest has entered into other transactions that hedge or
mitigate the economic effect of such Synthetic Equity Interest, (c) any proxy
(other than a revocable proxy given in response to a public proxy solicitation
made pursuant to, and in accordance with, the Exchange Act), agreement,
arrangement, understanding or relationship pursuant to which such Proposing
Person has or shares a right to, directly or indirectly, vote any shares of any
class or series of capital stock of the Corporation, (d) any rights to dividends
or other distributions on the shares of any class or series of capital stock of
the Corporation, directly or indirectly, owned beneficially by such Proposing
Person that are separated or separable from the underlying shares of the
Corporation, and (e) any performance-related fees (other than an asset based
fee) that such Proposing Person, directly or indirectly, is entitled to based on
any increase or decrease in the value of shares of any class or series of
capital stock of the Corporation or any Synthetic Equity Interests (the
disclosures to be made pursuant to the foregoing clauses (a) through (e) are
referred to, collectively, as “Material Ownership Interests”) and (iii) a
description of the material terms of all agreements, arrangements or
understandings (whether or not in writing) entered into by any Proposing Person
or any of its affiliates or associates with any other person for the purpose of
acquiring, holding, disposing or voting of any shares of any class or series of
capital stock of the Corporation;
(D) (i)
a description of all agreements, arrangements or understandings by and among any
of the Proposing Persons, or by and among any Proposing Persons and any other
person (including with any proposed nominee(s)), pertaining to the nomination(s)
or other business proposed to be brought before the meeting of stockholders
(which description shall identify the name of each other person who is party to
such an agreement, arrangement or understanding), and (ii) identification of the
names and addresses of other stockholders (including beneficial owners) known by
any of the Proposing Persons to support such nominations or other business
proposal(s), and to the extent known the class and number of all shares of the
Corporation’s capital stock owned beneficially or of record by such other
stockholder(s) or other beneficial owner(s); and
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(E) a
statement whether or not the stockholder giving the notice and/or the other
Proposing Person(s), if any, will deliver a proxy statement and form of proxy to
holders of, in the case of a business proposal, at least the percentage of
voting power of all of the shares of capital stock of the Corporation required
under applicable law to approve the proposal or, in the case of a nomination or
nominations, at least the percentage of voting power of all of the shares of
capital stock of the Corporation reasonably believed by such Proposing Person to
be sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder (such statement, the “Solicitation Statement”).
For
purposes of this Article I of these By-laws, the term “Proposing Person” shall
mean the following persons: (i) the stockholder of record providing the notice
of nominations or business proposed to be brought before a stockholders’
meeting, and (ii) the beneficial owner(s), if different, on whose behalf the
nominations or business proposed to be brought before a stockholders’ meeting is
made. For purposes of this Section 2 of Article I of these By-laws, the term
“Synthetic Equity Interest” shall mean any transaction, agreement or arrangement
(or series of transactions, agreements or arrangements), including, without
limitation, any derivative, swap, hedge, repurchase or so-called “stock
borrowing” agreement or arrangement, the purpose or effect of which is to,
directly or indirectly: (a) give a person or entity economic benefit and/or risk
similar to ownership of shares of any class or series of capital stock of the
Corporation, in whole or in part, including due to the fact that such
transaction, agreement or arrangement provides, directly or indirectly, the
opportunity to profit or avoid a loss from any increase or decrease in the value
of any shares of any class or series of capital stock of the Corporation, (b)
mitigate loss to, reduce the economic risk of or manage the risk of share price
changes for, any person or entity with respect to any shares of any class or
series of capital stock of the Corporation, (c) otherwise provide in any manner
the opportunity to profit or avoid a loss from any decrease in the value of any
shares of any class or series of capital stock of the Corporation, or (d)
increase or decrease the voting power of any person or entity with respect to
any shares of any class or series of capital stock of the
Corporation.
(3)
A stockholder
providing Timely Notice of nominations or business proposed to be brought before
an Annual Meeting shall further update and supplement such notice, if necessary,
so that the information (including, without limitation, the Material Ownership
Interests information) provided or required to be provided in such notice
pursuant to this By-law shall be true and correct as of the record date for the
meeting and as of the date that is ten (10) business days prior to such Annual
Meeting, and such update and supplement shall be received by the Secretary at
the principal executive offices of the Corporation not later than the close of
business on the fifth (5th) business day after the record date for the Annual
Meeting (in the case of the update and supplement required to be made as of the
record date), and not later than the close of business on the eighth (8th)
business day prior to the date of the Annual Meeting (in the case of the update
and supplement required to be made as of ten (10) business days prior to the
meeting).
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(4) Notwithstanding
anything in the second sentence of Article I, Section 2(a)(2) of this
By-law 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 naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the Corporation at least ten (10) days
before the last day a stockholder may deliver a notice of nomination in
accordance with the second sentence of Article I, Section 2(a)(2), a
stockholder’s notice required by this By-law 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 of the Corporation 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.
(b) General.
(1) Only
such persons who are nominated in accordance with the provisions of this By-law
or in accordance with Rule 14a-11 under the Exchange Act shall be eligible for
election and to serve as directors and only such business shall be conducted at
an Annual Meeting as shall have been brought before the meeting in accordance
with the provisions of this By-law or in accordance with Rule 14a-8 under the
Exchange Act. The Board of Directors or a designated committee thereof
shall have the power to determine whether a nomination or any business proposed
to be brought before the meeting was made in accordance with the provisions of
this By-law. If neither the Board of Directors nor such designated
committee makes a determination as to whether any stockholder proposal or
nomination was made in accordance with the provisions of this By-law, the
presiding officer of the Annual Meeting shall have the power and duty to
determine whether the stockholder proposal or nomination was made in accordance
with the provisions of this By-law. If the Board of Directors or a
designated committee thereof or the presiding officer, as applicable, determines
that any stockholder proposal or nomination was not made in accordance with the
provisions of this By-law, such proposal or nomination shall be disregarded and
shall not be presented for action at the Annual Meeting.
(2) Except
as otherwise required by law, nothing in this Article I, Section 2 shall
obligate the Corporation or the Board of Directors to include in any proxy
statement or other stockholder communication distributed on behalf of the
Corporation or the Board of Directors information with respect to any nominee
for director or any other matter of business submitted by a
stockholder.
(3) Notwithstanding
the foregoing provisions of this Article I, Section 2, if the nominating or
proposing stockholder (or a qualified representative of the stockholder) does
not appear at the Annual Meeting to present a nomination or any business, such
nomination or business shall be disregarded, notwithstanding that proxies in
respect of such vote may have been received by the Corporation. For
purposes of this Article I, Section 2, to be considered a qualified
representative of the proposing stockholder, a person must be authorized by a
written instrument executed by such stockholder or an electronic transmission
delivered by such stockholder to act for such stockholder as proxy at the
meeting of stockholders and such person must produce such written instrument or
electronic transmission, or a reliable reproduction of the written instrument or
electronic transmission, to the presiding officer at the meeting of
stockholders.
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(4) For
purposes of this By-law, “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.
(5) Notwithstanding
the foregoing provisions of this By-law, 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 By-law. Nothing
in this By-law shall be deemed to affect any rights of (i) stockholders to have
nominations or proposals included in the Corporation’s proxy statement pursuant
to Rule 14a-8 or Rule 14a-11 (or any successor rules), as applicable, under
the Exchange Act and, to the extent required by such rule, have such nominations
or proposals considered and voted on at an Annual Meeting or (ii) the holders of
any series of Undesignated Preferred Stock to elect directors under specified
circumstances.
SECTION
3. Special
Meetings. Except as otherwise required by statute and subject
to the rights, if any, of the holders of any series of Undesignated Preferred
Stock, special meetings of the stockholders of the Corporation may be called
only by the Board of Directors acting pursuant to a resolution approved by the
affirmative vote of a majority of the Directors then in office. The
Board of Directors may postpone or reschedule any previously scheduled special
meeting of stockholders. Only those matters set forth in the notice of the
special meeting may be considered or acted upon at a special meeting of
stockholders of the Corporation. Nominations of persons for election
to the Board of Directors of the Corporation and stockholder proposals of other
business shall not be brought before a special meeting of stockholders to be
considered by the stockholders unless such special meeting is held in lieu of an
annual meeting of stockholders in accordance with Article I, Section 1 of these
By-laws, in which case such special meeting in lieu thereof shall be deemed an
Annual Meeting for purposes of these By-laws and the provisions of Article I,
Section 2 of these By-laws shall govern such special meeting.
SECTION
4. Notice of Meetings;
Adjournments.
(a) A
notice of each Annual Meeting stating the hour, date and place, if any, of such
Annual Meeting and the means of remote communication, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at
such meeting, shall be given not less than ten (10) days nor more than sixty
(60) days before the Annual Meeting, to each stockholder entitled to vote
thereat by delivering such notice to such stockholder or by mailing it, postage
prepaid, addressed to such stockholder at the address of such stockholder as it
appears on the Corporation’s stock transfer books. Without limiting
the manner by which notice may otherwise be given to stockholders, any notice to
stockholders may be given by electronic transmission in the manner provided in
Section 232 of the Delaware General Corporation Law (“DGCL”).
(b) Notice
of all special meetings of stockholders shall be given in the same manner as
provided for Annual Meetings, except that the notice of all special meetings
shall state the purpose or purposes for which the meeting has been
called.
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(c) Notice
of an Annual Meeting or special meeting of stockholders need not be given to a
stockholder if a waiver of notice is executed, or waiver of notice by electronic
transmission is provided, before or after such meeting by such stockholder or if
such stockholder attends such meeting, unless such attendance is for the express
purpose of objecting at the beginning of the meeting to the transaction of any
business because the meeting was not lawfully called or convened.
(d) The
Board of Directors may postpone and reschedule any previously scheduled Annual
Meeting or special meeting of stockholders and any record date with respect
thereto, regardless of whether any notice or public disclosure with respect to
any such meeting has been sent or made pursuant to Section 2 of this
Article I of these By-laws or otherwise. In no event shall the
public announcement of an adjournment, postponement or rescheduling of any
previously scheduled meeting of stockholders commence a new time period for the
giving of a stockholder’s notice under this Article I of these
By-laws.
(e) When
any meeting is convened, the presiding officer may adjourn the meeting if
(i) no quorum is present for the transaction of business, (ii) the
Board of Directors determines that adjournment is necessary or appropriate to
enable the stockholders to consider fully information which the Board of
Directors determines has not been made sufficiently or timely available to
stockholders, or (iii) the Board of Directors determines that adjournment is
otherwise in the best interests of the Corporation. When any Annual
Meeting or special meeting of stockholders is adjourned to another hour, date or
place, notice need not be given of the adjourned meeting other than an
announcement at the meeting at which the adjournment is taken of the hour, date
and place, if any, to which the meeting is adjourned 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; provided, however, that
if the adjournment is for more than thirty (30) days from the meeting date, or
if after the adjournment a new record date is fixed for the adjourned meeting,
notice 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 to each stockholder of record
entitled to vote thereat and each stockholder who, by law or under the
Certificate of Incorporation of the Corporation (as the same may hereafter be
amended and/or restated, the “Certificate”) or these By-laws, is entitled to
such notice.
SECTION
5. Quorum. A
majority of the shares entitled to vote, present in person or represented by
proxy, shall constitute a quorum at any meeting of stockholders. If
less than a quorum is present at a meeting, the holders of voting stock
representing a majority of the voting power present at the meeting or the
presiding officer may adjourn the meeting from time to time, and the meeting may
be held as adjourned without further notice, except as provided in
Section 4 of this Article I. At such adjourned meeting at
which a quorum is present, any business may be transacted which might have been
transacted at the meeting as originally noticed. The stockholders
present at a duly constituted meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
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SECTION
6. Voting and
Proxies. Stockholders shall have one vote for each share of
stock entitled to vote owned by them of record according to the stock ledger of
the Corporation as of the record date, unless otherwise provided by law or by
the Certificate. Stockholders may vote either (i) in person, (ii) by
written proxy or (iii) by a transmission permitted by Section 212(c) of the
DGCL. Any copy, facsimile telecommunication or other reliable reproduction
of the writing or transmission permitted by Section 212(c) of the DGCL may be
substituted for or used in lieu of the original writing or transmission for any
and all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile telecommunication or other reproduction shall
be a complete reproduction of the entire original writing or transmission.
Proxies shall be filed in accordance with the procedures established for the
meeting of stockholders. Except as otherwise limited therein or as
otherwise provided by law, proxies authorizing a person to vote at a specific
meeting shall entitle the persons authorized thereby to vote at any adjournment
of such meeting, but they shall not be valid after final adjournment of such
meeting. A proxy with respect to stock held in the name of two or more
persons shall be valid if executed by or on behalf of any one of them unless at
or prior to the exercise of the proxy the Corporation receives a specific
written notice to the contrary from any one of them.
SECTION
7. Action at
Meeting. When a quorum is present at any meeting of stockholders,
any matter before any such meeting (other than an election of a director or
directors) shall be decided by a majority of the votes properly cast for and
against such matter, except where a larger vote is required by law, by the
Certificate or by these By-laws. Any election of directors by stockholders
shall be determined by a plurality of the votes properly cast on the election of
directors.
SECTION
8. Stockholder
Lists. The Secretary or an Assistant Secretary (or the
Corporation’s transfer agent or other person authorized by these By-laws or by
law) shall prepare and make available, at least ten (10) days before every
Annual Meeting or special 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, for a period of at least ten (10) days prior to
the meeting in the manner provided by law. The list shall also be open to
the examination of any stockholder during the whole time of the meeting as
provided by law.
SECTION
9. Presiding
Officer. The Board of Directors shall designate a representative to
preside over all Annual Meetings or special meetings of stockholders, provided
that if the Board of Directors does not so designate such a presiding officer,
then the Chairman of the Board, if one is elected, shall preside over such
meetings. If the Board of Directors does not so designate such a presiding
officer and there is no Chairman of the Board or the Chairman of the Board is
unable to so preside or is absent, then the Chief Executive Officer, if one is
elected, shall preside over such meetings, provided further that if there is no
Chief Executive Officer or the Chief Executive Officer is unable to so preside
or is absent, then the President shall preside over such meetings. The
presiding officer at any Annual Meeting or special meeting of stockholders shall
have the power, among other things, to adjourn such meeting at any time and from
time to time, subject to Sections 4 and 5 of this
Article I. The order of business and all other matters of procedure
at any meeting of the stockholders shall be determined by the presiding
officer.
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SECTION
10. Inspectors of
Elections. 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
presiding officer shall appoint one or more inspectors to act at the
meeting. Any inspector may, but need not, be an officer, employee or agent
of the Corporation. 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 perform such duties as are required by the
DGCL, including the counting of all votes and ballots. The inspectors may
appoint or retain other persons or entities to assist the inspectors in the
performance of the duties of the inspectors. The presiding officer may
review all determinations made by the inspectors, and in so doing the presiding
officer shall be entitled to exercise his or her sole judgment and discretion
and he or she shall not be bound by any determinations made by the
inspectors. All determinations by the inspectors and, if applicable, the
presiding officer, shall be subject to further review by any court of competent
jurisdiction.
ARTICLE
II
Directors
SECTION
1. Powers. The
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors except as otherwise provided by the
Certificate or required by law.
SECTION
2. Number and
Terms. The number of directors of the Corporation shall be fixed
solely and exclusively by resolution duly adopted from time to time by the Board
of Directors. The directors shall hold office in the manner provided in
the Certificate.
SECTION
3. Qualification.
No director need be a stockholder of the Corporation.
SECTION
4. Vacancies.
Vacancies in the Board of Directors shall be filled in the manner provided in
the Certificate.
SECTION
5. Removal.
Directors may be removed from office only in the manner provided in the
Certificate.
SECTION
6. Resignation. A
director may resign at any time by giving written notice to the Chairman of the
Board, if one is elected, the President or the Secretary. A resignation
shall be effective upon receipt, unless the resignation otherwise
provides.
9
SECTION
7. Regular
Meetings. The regular annual meeting of the Board of Directors
shall be held, without notice other than this Section 7, on the same date and at
the same place as the Annual Meeting following the close of such meeting of
stockholders. Other regular meetings of the Board of Directors may be held
at such hour, date and place as the Board of Directors may by resolution from
time to time determine and publicize by means of reasonable notice given to any
director who is not present at the meeting at which such resolution is
adopted.
SECTION
8. Special
Meetings. Special meetings of the Board of Directors may be called,
orally or in writing, by or at the request of a majority of the directors, the
Chairman of the Board, if one is elected, or the President. The person
calling any such special meeting of the Board of Directors may fix the hour,
date and place thereof.
SECTION
9. Notice of
Meetings. Notice of the hour, date and place of all special
meetings of the Board of Directors shall be given to each director by the
Secretary or an Assistant Secretary, or in case of the death, absence,
incapacity or refusal of such persons, by the Chairman of the Board, if one is
elected, or the President or such other officer designated by the Chairman of
the Board, if one is elected, or the President. Notice of any special
meeting of the Board of Directors shall be given to each director in person, by
telephone, or by facsimile, electronic mail or other form of electronic
communication, sent to his or her business or home address, at least twenty-four
(24) hours in advance of the meeting, or by written notice mailed to his or her
business or home address, at least forty-eight (48) hours in advance of the
meeting. Such notice shall be deemed to be delivered when hand-delivered
to such address, read to such director by telephone, deposited in the mail so
addressed, with postage thereon prepaid if mailed, dispatched or transmitted if
sent by facsimile transmission or by electronic mail or other form of electronic
communications. A written waiver of notice signed before or after a
meeting by a director and filed with the records of the meeting shall be deemed
to be equivalent to notice of the meeting. The attendance of a director at
a meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because such meeting is not
lawfully called or convened. Except as otherwise required by law, by the
Certificate or by these By-laws, neither the business to be transacted at, nor
the purpose of, any meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
SECTION
10. Quorum. At any
meeting of the Board of Directors, a majority of the total number of directors
shall constitute a quorum for the transaction of business, but if less than a
quorum is present at a meeting, a majority of the directors present may adjourn
the meeting from time to time, and the meeting may be held as adjourned without
further notice. Any business which might have been transacted at the
meeting as originally noticed may be transacted at such adjourned meeting at
which a quorum is present. For purposes of this section, the total number
of directors includes any unfilled vacancies on the Board of
Directors.
SECTION
11. Action at
Meeting. At any meeting of the Board of Directors at which a quorum
is present, the vote of a majority of the directors present shall constitute
action by the Board of Directors, unless otherwise required by law, by the
Certificate or by these By-laws.
10
SECTION
12. Action by
Consent. Any action required or permitted to be taken at any
meeting of the Board of Directors may be taken without a meeting if all members
of the Board of Directors consent thereto in writing or by electronic
transmission and the writing or writings or electronic transmission or
transmissions are filed with the records of the meetings 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. Such consent shall be treated as a
resolution of the Board of Directors for all purposes.
SECTION
13. Manner of
Participation. Directors may participate in meetings of the Board
of Directors by means of conference telephone or other communications equipment
by means of which all directors participating in the meeting can hear each
other, and participation in a meeting in accordance herewith shall constitute
presence in person at such meeting for purposes of these By-laws.
SECTION
14. Presiding
Director. The Board of Directors shall designate a representative
to preside over all meetings of the Board of Directors, provided that if the
Board of Directors does not so designate such a presiding director or such
designated presiding director is unable to so preside or is absent, then the
Chairman of the Board, if one is elected, shall preside over all meetings of the
Board of Directors. If both the designated presiding director, if one is
so designated, and the Chairman of the Board, if one is elected, are unable to
preside or are absent, the Board of Directors shall designate an alternate
representative to preside over a meeting of the Board of Directors.
SECTION
15. Committees. The
Board of Directors, by vote of a majority of the directors then in office, may
elect one or more committees, including, without limitation, a Compensation
Committee, a Nominating & Corporate Governance Committee and an Audit
Committee, and may delegate thereto some or all of its powers except those which
by law, by the Certificate or by these By-laws may not be delegated.
Except as the Board of Directors may otherwise determine, any such committee may
make rules for the conduct of its business, but unless otherwise provided by the
Board of Directors or in such rules, its business shall be conducted so far as
possible in the same manner as is provided by these By-laws for the Board of
Directors. All members of such committees shall hold such offices at the
pleasure of the Board of Directors. The Board of Directors may abolish any
such committee at any time. Any committee to which the Board of Directors
delegates any of its powers or duties shall keep records of its meetings and
shall report its action to the Board of Directors.
SECTION
16. Compensation of
Directors. Directors shall receive such compensation for their
services as shall be determined by a majority of the Board of Directors, or a
designated committee thereof, provided that directors who are serving the
Corporation as employees and who receive compensation for their services as
such, shall not receive any salary or other compensation for their services as
directors of the Corporation.
11
ARTICLE
III
Officers
SECTION
1. Enumeration.
The officers of the Corporation shall consist of a President, a Treasurer, a
Secretary and such other officers, including, without limitation, a Chairman of
the Board of Directors, a Chief Executive Officer and one or more Vice
Presidents (including Executive Vice Presidents or Senior Vice Presidents),
Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries, as
the Board of Directors may determine.
SECTION
2. Election. At
the regular annual meeting of the Board of Directors following the Annual
Meeting, the Board of Directors shall elect the President, the Treasurer and the
Secretary. Other officers may be elected by the Board of Directors at such
regular annual meeting of the Board of Directors or at any other regular or
special meeting.
SECTION
3. Qualification.
No officer need be a stockholder or a director. Any person may occupy more
than one office of the Corporation at any time.
SECTION
4. Tenure. Except
as otherwise provided by the Certificate or by these By-laws, each of the
officers of the Corporation shall hold office until the regular annual meeting
of the Board of Directors following the next Annual Meeting and until his or her
successor is elected and qualified or until his or her earlier resignation or
removal.
SECTION
5. Resignation.
Any officer may resign by delivering his or her written resignation to the
Corporation addressed to the President or the Secretary, and such resignation
shall be effective upon receipt, unless the resignation otherwise
provides.
SECTION
6. Removal. Except
as otherwise provided by law, the Board of Directors may remove any officer with
or without cause by the affirmative vote of a majority of the directors then in
office.
SECTION
7. Absence or
Disability. In the event of the absence or disability of any
officer, the Board of Directors may designate another officer to act temporarily
in place of such absent or disabled officer.
SECTION
8. Vacancies. Any
vacancy in any office may be filled for the unexpired portion of the term by the
Board of Directors.
SECTION
9. President. The
President shall, subject to the direction of the Board of Directors, have such
powers and shall perform such duties as the Board of Directors may from time to
time designate.
12
SECTION
10. Chairman of the
Board. The Chairman of the Board, if one is elected, shall have
such powers and shall perform such duties as the Board of Directors may from
time to time designate.
SECTION
11. Chief Executive
Officer. The Chief Executive Officer, if one is elected, shall have
such powers and shall perform such duties as the Board of Directors may from
time to time designate.
SECTION
12. Vice Presidents and
Assistant Vice Presidents. Any Vice President (including any
Executive Vice President or Senior Vice President) and any Assistant Vice
President shall have such powers and shall perform such duties as the Board of
Directors or the Chief Executive Officer may from time to time
designate.
SECTION
13. Treasurer and Assistant
Treasurers. The Treasurer shall, subject to the direction of the
Board of Directors and except as the Board of Directors or the Chief Executive
Officer may otherwise provide, have general charge of the financial affairs of
the Corporation and shall cause to be kept accurate books of account. The
Treasurer shall have custody of all funds, securities, and valuable documents of
the Corporation. He or she shall have such other duties and powers as may
be designated from time to time by the Board of Directors or the Chief Executive
Officer. Any Assistant Treasurer shall have such powers and perform such
duties as the Board of Directors or the Chief Executive Officer may from time to
time designate.
SECTION
14. Secretary and Assistant
Secretaries. The Secretary shall record all the proceedings of the
meetings of the stockholders and the Board of Directors (including committees of
the Board of Directors) in books kept for that purpose. In his or her
absence from any such meeting, a temporary secretary chosen at the meeting shall
record the proceedings thereof. The Secretary shall have charge of the
stock ledger (which may, however, be kept by any transfer or other agent of the
Corporation). The Secretary shall have custody of the seal of the
Corporation, and the Secretary, or an Assistant Secretary shall have authority
to affix it to any instrument requiring it, and, when so affixed, the seal may
be attested by his or her signature or that of an Assistant Secretary. The
Secretary shall have such other duties and powers as may be designated from time
to time by the Board of Directors or the Chief Executive Officer. In the
absence of the Secretary, any Assistant Secretary may perform his or her duties
and responsibilities. Any Assistant Secretary shall have such powers and
perform such duties as the Board of Directors or the Chief Executive Officer may
from time to time designate.
SECTION
15. Other Powers and
Duties. Subject to these By-laws and to such limitations as the
Board of Directors may from time to time prescribe, the officers of the
Corporation shall each have such powers and duties as generally pertain to their
respective offices, as well as such powers and duties as from time to time may
be conferred by the Board of Directors or the Chief Executive
Officer.
13
ARTICLE
IV
Capital
Stock
SECTION
1. Certificates of
Stock. Each stockholder shall be entitled to a certificate of the
capital stock of the Corporation in such form as may from time to time be
prescribed by the Board of Directors. Such certificate shall be signed by
the Chairman of the Board, the President or a Vice President and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary. The Corporation seal and the signatures by the Corporation’s
officers, the transfer agent or the registrar may be facsimiles. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed on such certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the time of its issue. Every
certificate for shares of stock which are subject to any restriction on transfer
and every certificate issued when the Corporation is authorized to issue more
than one class or series of stock shall contain such legend with respect thereto
as is required by law. Notwithstanding anything to the contrary provided
in these Bylaws, 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 (except that the foregoing shall not
apply to shares represented by a certificate until such certificate is
surrendered to the Corporation), and by the approval and adoption of these
Bylaws the Board of Directors has determined that all classes or series of the
Corporation’s stock may be uncertificated, whether upon original issuance,
re-issuance, or subsequent transfer.
SECTION
2. Transfers.
Subject to any restrictions on transfer and unless otherwise provided by the
Board of Directors, shares of stock that are represented by a certificate may be
transferred on the books of the Corporation by the surrender to the Corporation
or its transfer agent of the certificate theretofore properly endorsed or
accompanied by a written assignment or power of attorney properly executed, with
transfer stamps (if necessary) affixed, and with such proof of the authenticity
of signature as the Corporation or its transfer agent may reasonably
require. Shares of stock that are not represented by a certificate may be
transferred on the books of the Corporation by submitting to the Corporation or
its transfer agent such evidence of transfer and following such other procedures
as the Corporation or its transfer agent may require.
SECTION
3. Record Holders.
Except as may otherwise be required by law, by the Certificate or by these
By-laws, the Corporation shall be entitled to treat the record holder of stock
as shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to vote with respect thereto, regardless of
any transfer, pledge or other disposition of such stock, until the shares have
been transferred on the books of the Corporation in accordance with the
requirements of these By-laws.
14
SECTION
4. 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 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 a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date: (a) in the case of determination of
stockholders entitled to vote at any meeting of stockholders, shall, unless
otherwise required by law, not be more than sixty (60) nor less than ten (10)
days before the date of such meeting and (b) in the case of any other action,
shall not be more than sixty (60) days prior to such other action. If no
record date is fixed: (i) 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 (ii) the record date for determining stockholders
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
5. Replacement of
Certificates. In case of the alleged loss, destruction or
mutilation of a certificate of stock of the Corporation, a duplicate certificate
may be issued in place thereof, upon such terms as the Board of Directors may
prescribe.
ARTICLE
V
Indemnification
SECTION
1. Definitions.
For purposes of this Article:
(a) “Corporate
Status” describes the status of a person who is serving or has served (i) as a
Director of the Corporation, (ii) as an Officer of the Corporation, (iii) as a
Non-Officer Employee of the Corporation, or (iv) as a director, partner,
trustee, officer, employee or agent of any other corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan,
foundation, association, organization or other legal entity which such person is
or was serving at the request of the Corporation. For purposes of this
Section 1(a), a Director, Officer or Non-Officer Employee of the Corporation who
is serving or has served as a director, partner, trustee, officer, employee or
agent of a Subsidiary shall be deemed to be serving at the request of the
Corporation. Notwithstanding the foregoing, “Corporate Status” shall not
include the status of a person who is serving or has served as a director,
officer, employee or agent of a constituent corporation absorbed in a merger or
consolidation transaction with the Corporation with respect to such person’s
activities prior to said transaction, unless specifically authorized by the
Board of Directors or the stockholders of the Corporation;
(b) “Director”
means any person who serves or has served the Corporation as a director on the
Board of Directors of the Corporation;
(c)
“Disinterested Director” means, with respect to each Proceeding in respect of
which indemnification is sought hereunder, a Director of the Corporation who is
not and was not a party to such Proceeding;
15
(d) “Expenses”
means all attorneys’ fees, retainers, court costs, transcript costs, fees of
expert witnesses, private investigators and professional advisors (including,
without limitation, accountants and investment bankers), travel expenses,
duplicating costs, printing and binding costs, costs of preparation of
demonstrative evidence and other courtroom presentation aids and devices, costs
incurred in connection with document review, organization, imaging and
computerization, telephone charges, postage, delivery service fees, and all
other disbursements, costs or expenses of the type customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, settling or otherwise
participating in, a Proceeding;
(e) “Liabilities”
means judgments, damages, liabilities, losses, penalties, excise taxes, fines
and amounts paid in settlement;
(f) “Non-Officer
Employee” means any person who serves or has served as an employee or agent of
the Corporation, but who is not or was not a Director or Officer;
(g) “Officer”
means any person who serves or has served the Corporation as an officer of the
Corporation appointed by the Board of Directors of the Corporation;
(h) “Proceeding”
means any threatened, pending or completed action, suit, arbitration, alternate
dispute resolution mechanism, inquiry, investigation, administrative hearing or
other proceeding, whether civil, criminal, administrative, arbitrative or
investigative; and
(i) “Subsidiary”
shall mean any corporation, partnership, limited liability company, joint
venture, trust or other entity of which the Corporation owns (either directly or
through or together with another Subsidiary of the Corporation) either (i) a
general partner, managing member or other similar interest or (ii) (A) fifty
percent (50%) or more of the voting power of the voting capital equity interests
of such corporation, partnership, limited liability company, joint venture or
other entity, or (B) fifty percent (50%) or more of the outstanding voting
capital stock or other voting equity interests of such corporation, partnership,
limited liability company, joint venture or other entity.
SECTION
2. Indemnification of Directors and
Officers.
(a) Subject
to the operation of Section 4 of this Article V of these By-laws, each Director
and Officer shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the DGCL, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
such law permitted the Corporation to provide prior to such amendment), and to
the extent authorized in this Section 2.
(1) Actions, Suits and
Proceedings Other than By or In the Right of the Corporation. Each
Director and Officer shall be indemnified and held harmless by the Corporation
against any and all Expenses and Liabilities that are incurred or paid by such
Director or Officer or on such Director’s or Officer’s behalf in connection with
any Proceeding or any claim, issue or matter therein (other than an action by or
in the right of the Corporation), which such Director or Officer is, or is
threatened to be made, a party to or participant in by reason of such Director’s
or Officer’s Corporate Status, if such Director or Officer acted in good faith
and in a manner such Director or Officer reasonably believed to be in or not
opposed to the best interests of the Corporation and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
16
(2) Actions, Suits and
Proceedings By or In the Right of the Corporation. Each Director and
Officer shall be indemnified and held harmless by the Corporation against any
and all Expenses that are incurred by such Director or Officer or on such
Director’s or Officer’s behalf in connection with any Proceeding or any claim,
issue or matter therein by or in the right of the Corporation, which such
Director or Officer is, or is threatened to be made, a party to or participant
in by reason of such Director’s or Officer’s Corporate Status, if such Director
or Officer acted in good faith and in a manner such Director or Officer
reasonably believed to be in or not opposed to the best interests of the
Corporation; provided, however, that no indemnification shall be made under this
Section 2(a)(2) in respect of any claim, issue or matter as to which such
Director or Officer shall have been finally adjudged by a court of competent
jurisdiction to be liable to the Corporation, unless, and only to the extent
that, the Court of Chancery or another court in which such Proceeding was
brought shall determine upon application that, despite adjudication of
liability, but in view of all the circumstances of the case, such Director or
Officer is fairly and reasonably entitled to indemnification for such Expenses
that such court deems proper.
(3) Survival of
Rights. The rights of indemnification provided by this
Section 2 shall continue as to a Director or Officer after he or she has
ceased to be a Director or Officer and shall inure to the benefit of his or her
heirs, executors, administrators and personal representatives.
(4) Actions by Directors or
Officers. Notwithstanding the foregoing, the Corporation shall
indemnify any Director or Officer seeking indemnification in connection with a
Proceeding initiated by such Director or Officer only if such Proceeding
(including any parts of such Proceeding not initiated by such Director or
Officer) was authorized in advance by the Board of Directors of the Corporation,
unless such Proceeding was brought to enforce such Officer’s or Director’s
rights to indemnification or, in the case of Directors, advancement of Expenses
under these By-laws in accordance with the provisions set forth
herein.
SECTION
3. Indemnification of
Non-Officer Employees. Subject to the operation of Section 4 of
this Article V of these By-laws, each Non-Officer Employee may, in the
discretion of the Board of Directors of the Corporation, be indemnified by the
Corporation to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended, against any or all Expenses and Liabilities that are
incurred by such Non-Officer Employee or on such Non-Officer Employee’s behalf
in connection with any threatened, pending or completed Proceeding, or any
claim, issue or matter therein, which such Non-Officer Employee is, or is
threatened to be made, a party to or participant in by reason of such
Non-Officer Employee’s Corporate Status, if such Non-Officer Employee acted in
good faith and in a manner such Non-Officer Employee reasonably believed to be
in or not opposed to the best interests of the Corporation and, with respect to
any criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The rights of indemnification provided by this Section 3
shall exist as to a Non-Officer Employee after he or she has ceased to be a
Non-Officer Employee and shall inure to the benefit of his or her heirs,
personal representatives, executors and administrators. Notwithstanding
the foregoing, the Corporation may indemnify any Non-Officer Employee seeking
indemnification in connection with a Proceeding initiated by such Non-Officer
Employee only if such Proceeding was authorized in advance by the Board of
Directors of the Corporation.
17
SECTION
4. Determination.
Unless ordered by a court, no indemnification shall be provided pursuant to this
Article V to a Director, to an Officer or to a Non-Officer Employee unless a
determination shall have been made that such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal Proceeding, such
person had no reasonable cause to believe his or her conduct was unlawful.
Such determination shall be made by (a) a majority vote of the
Disinterested Directors, even though less than a quorum of the Board of
Directors, (b) a committee comprised of Disinterested Directors, such
committee having been designated by a majority vote of the Disinterested
Directors (even though less than a quorum), (c) if there are no such
Disinterested Directors, or if a majority of Disinterested Directors so directs,
by independent legal counsel in a written opinion, or (d) by the stockholders of
the Corporation.
SECTION
5. Advancement of Expenses to Directors Prior to
Final Disposition.
(a) The
Corporation shall advance all Expenses incurred by or on behalf of any Director
in connection with any Proceeding in which such Director is involved by reason
of such Director’s Corporate Status within thirty (30) days after the receipt by
the Corporation of a written statement from such Director requesting such
advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by such Director and shall be preceded
or accompanied by an undertaking by or on behalf of such Director to repay any
Expenses so advanced if it shall ultimately be determined that such Director is
not entitled to be indemnified against such Expenses. Notwithstanding the
foregoing, the Corporation shall advance all Expenses incurred by or on behalf
of any Director seeking advancement of expenses hereunder in connection with a
Proceeding initiated by such Director only if such Proceeding (including any
parts of such Proceeding not initiated by such Director) was (i) authorized by
the Board of Directors of the Corporation, or (ii) brought to enforce such
Director’s rights to indemnification or advancement of Expenses under these
By-laws.
(b) If
a claim for advancement of Expenses hereunder by a Director is not paid in full
by the Corporation within thirty (30) days after receipt by the Corporation of
documentation of Expenses and the required undertaking, such Director may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and if successful in whole or in part, such Director shall also be
entitled to be paid the expenses of prosecuting such claim. The failure of
the Corporation (including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to make a determination concerning
the permissibility of such advancement of Expenses under this Article V shall
not be a defense to an action brought by a Director for recovery of the unpaid
amount of an advancement claim and shall not create a presumption that such
advancement is not permissible. The burden of proving that a Director is
not entitled to an advancement of expenses shall be on the
Corporation.
18
(c) In
any suit brought by 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 Director has not met
any applicable standard for indemnification set forth in the DGCL.
SECTION
6. Advancement of Expenses to Officers and
Non-Officer Employees Prior to Final Disposition.
(a) The
Corporation may, at the discretion of the Board of Directors of the Corporation,
advance any or all Expenses incurred by or on behalf of any Officer or any
Non-Officer Employee in connection with any Proceeding in which such person is
involved by reason of his or her Corporate Status as an Officer or Non-Officer
Employee upon the receipt by the Corporation of a statement or statements from
such Officer or Non-Officer Employee requesting such advance or advances from
time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the
Expenses incurred by such Officer or Non-Officer Employee and shall be preceded
or accompanied by an undertaking by or on behalf of such person to repay any
Expenses so advanced if it shall ultimately be determined that such Officer or
Non-Officer Employee is not entitled to be indemnified against such
Expenses.
(b) In
any suit brought by 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 Officer or Non-Officer
Employee has not met any applicable standard for indemnification set forth in
the DGCL.
SECTION
7. Contractual Nature of
Rights.
(a) The
provisions of this Article V shall be deemed to be a contract between the
Corporation and each Director and Officer entitled to the benefits hereof at any
time while this Article V is in effect, in consideration of such person’s
past or current and any future performance of services for the
Corporation. Neither amendment, repeal or modification of any provision of
this Article V nor the adoption of any provision of the Certificate of
Incorporation inconsistent with this Article V shall eliminate or reduce
any right conferred by this Article V in respect of any act or omission
occurring, or any cause of action or claim that accrues or arises or any state
of facts existing, at the time of or before such amendment, repeal, modification
or adoption of an inconsistent provision (even in the case of a proceeding based
on such a state of facts that is commenced after such time), and all rights to
indemnification and advancement of Expenses granted herein or arising out of any
act or omission shall vest at the time of the act or omission in question,
regardless of when or if any proceeding with respect to such act or omission is
commenced. The rights to indemnification and to advancement of expenses
provided by, or granted pursuant to, this Article V shall continue
notwithstanding that the person has ceased to be a director or officer of the
Corporation and shall inure to the benefit of the estate, heirs, executors,
administrators, legatees and distributes of such person.
19
(b) If
a claim for indemnification hereunder by a Director or Officer is not paid in
full by the Corporation within sixty (60) days after receipt by the Corporation
of a written claim for indemnification, such Director or Officer may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim, and if successful in whole or in part, such Director or Officer shall
also be entitled to be paid the expenses of prosecuting such claim. The
failure of the Corporation (including its Board of Directors or any committee
thereof, independent legal counsel, or stockholders) to make a determination
concerning the permissibility of such indemnification under this Article V shall
not be a defense to an action brought by a Director or Officer for recovery of
the unpaid amount of an indemnification claim and shall not create a presumption
that such indemnification is not permissible. The burden of proving that a
Director or Officer is not entitled to indemnification shall be on the
Corporation.
(c) In
any suit brought by a Director or Officer to enforce a right to indemnification
hereunder, it shall be a defense that such Director or Officer has not met any
applicable standard for indemnification set forth in the DGCL.
SECTION
8. Non-Exclusivity of
Rights. The rights to indemnification and to advancement of
Expenses set forth in this Article V shall not be exclusive of any other right
which any Director, Officer, or Non-Officer Employee may have or hereafter
acquire under any statute, provision of the Certificate or these By-laws,
agreement, vote of stockholders or Disinterested Directors or
otherwise.
SECTION
9. Insurance. The
Corporation may maintain insurance, at its expense, to protect itself and any
Director, Officer or Non-Officer Employee against any liability of any character
asserted against or incurred by the Corporation or any such Director, Officer or
Non-Officer Employee, or arising out of any such person’s Corporate Status,
whether or not the Corporation would have the power to indemnify such person
against such liability under the DGCL or the provisions of this
Article V.
SECTION
10. Other
Indemnification. The Corporation’s obligation, if any, to indemnify
or provide advancement of Expenses to any person under this Article V as a
result of such person serving, at the request of the Corporation, as a director,
partner, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
shall be reduced by any amount such person may collect as indemnification or
advancement of Expenses from such other corporation, partnership, joint venture,
trust, employee benefit plan or enterprise (the “Primary Indemnitor”). Any
indemnification or advancement of Expenses under this Article V owed by the
Corporation as a result of a person serving, at the request of the Corporation,
as a director, partner, trustee, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise shall only be in excess of, and shall be secondary to, the
indemnification or advancement of Expenses available from the applicable Primary
Indemnitor(s) and any applicable insurance policies.
20
ARTICLE
VI
Miscellaneous
Provisions
SECTION
1. Fiscal Year.
The fiscal year of the Corporation shall be determined by the Board of
Directors.
SECTION
2. Seal. The Board
of Directors shall have power to adopt and alter the seal of the
Corporation.
SECTION
3. Execution of
Instruments. All deeds, leases, transfers, contracts, bonds, notes
and other obligations to be entered into by the Corporation in the ordinary
course of its business without director action may be executed on behalf of the
Corporation by the Chairman of the Board, if one is elected, the President or
the Treasurer or any other officer, employee or agent of the Corporation as the
Board of Directors or the executive committee of the Board may
authorize.
SECTION
4. Voting of
Securities. Unless the Board of Directors otherwise provides, the
Chairman of the Board, if one is elected, the President or the Treasurer may
waive notice of and act on behalf of the Corporation, or appoint another person
or persons to act as proxy or attorney in fact for the Corporation with or
without discretionary power and/or power of substitution, at any meeting of
stockholders or shareholders of any other corporation or organization, any of
whose securities are held by the Corporation.
SECTION
5. Resident Agent.
The Board of Directors may appoint a resident agent upon whom legal process may
be served in any action or proceeding against the Corporation.
SECTION
6. Corporate
Records. The original or attested copies of the Certificate,
By-laws and records of all meetings of the incorporators, stockholders and the
Board of Directors and the stock transfer books, which shall contain the names
of all stockholders, their record addresses and the amount of stock held by
each, may be kept outside the State of Delaware and shall be kept at the
principal office of the Corporation, at an office of its counsel, at an office
of its transfer agent or at such other place or places as may be designated from
time to time by the Board of Directors.
SECTION
7. Certificate.
All references in these By-laws to the Certificate shall be deemed to refer to
the Amended and Restated Certificate of
Incorporation of the Corporation, as amended and/or restated and in effect from
time to time.
SECTION
8. Amendment of
By-laws.
(a) Amendment by
Directors. Except as provided otherwise by law, these By-laws may
be amended or repealed by the Board of Directors by the affirmative vote of a
majority of the directors then in office.
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(b) Amendment by
Stockholders. These By-laws may be amended or repealed at any
Annual Meeting, or special meeting of stockholders called for such purpose in
accordance with these By-Laws, by the affirmative vote of at least seventy-five
percent (75%) of the outstanding shares entitled to vote on such amendment or
repeal, voting together as a single class; provided, however, that if the Board
of Directors recommends that stockholders approve such amendment or repeal at
such meeting of stockholders, such amendment or repeal shall only require the
affirmative vote of the majority of the outstanding shares entitled to vote on
such amendment or repeal, voting together as a single class.
Notwithstanding the foregoing, stockholder approval shall not be required unless
mandated by the Certificate, these By-laws, or other applicable
law.
SECTION
9. Notices. If
mailed, notice to stockholders 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 to stockholders, any notice to stockholders
may be given by electronic transmission in the manner provided in Section 232 of
the DGCL.
SECTION
10. Waivers. A
written waiver of any notice, signed by a stockholder or director, or 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 to
be transacted at, nor the purpose of, any meeting need be specified in such a
waiver.
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Adopted
___________, ____ and effective as of ___________,
____.
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