Attached files
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8-K - FORM 8-K - Cardiac Science CORP | v57540e8vk.htm |
EX-3.1 - EXHIBIT 3.1 - Cardiac Science CORP | v57540exv3w1.htm |
EX-10.1 - EXHIBIT 10.1 - Cardiac Science CORP | v57540exv10w1.htm |
EX-10.2 - EXHIBIT 10.2 - Cardiac Science CORP | v57540exv10w2.htm |
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
CARDIAC SCIENCE CORPORATION
ADOPTED
DECEMBER 3, 2010
ARTICLE I. OFFICES
1.01. Registered Office. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
1.02. Principal Business Office. The corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the corporation may require.
ARTICLE II. STOCKHOLDERS
2.01. Place of Meeting. All meetings of the stockholders for the election of
directors shall be held at such place either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting or in duly executed
waiver of notice thereof.
2.02. Annual Meeting. Annual meetings of stockholders shall be held on the second
Tuesday of April if not a legal holiday, and if a legal holiday, then on the next secular day
following, at 10:00 a.m., or at such other date and time as shall be designated from time to time
by the Board of Directors. At such annual meeting, the stockholders shall elect by a plurality
vote, by written ballot, a Board of Directors and shall transact such other business as may
properly be brought before the meeting.
2.03. Notice of Meeting. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten nor more than sixty days before the date of the meeting.
2.04. Closing of Transfer Books or Fixing Record Date. The officer who has charge of
the stock ledger of the corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at 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 any purpose germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any stockholder who is present.
In order that the corporation may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful action, the
Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less
than ten days before the date of such meeting, nor more than sixty days prior to any other action.
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.
2.05. Special Meeting. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be
called by the President and shall be called by the President or Secretary at the request in writing
of a majority of the Board of Directors, or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.
2.06. Notice of Meeting. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given
not less than ten nor more than sixty days before the date of the meeting, to each stockholder
entitled to vote at such meeting. The business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
2.07. Quorum. Except as otherwise provided by statute or by the Certificate of
Incorporation, the holders of a majority of the shares of stock issued and outstanding and entitled
to vote thereat, present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than thirty days, or if after the adjournment
a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
2.08. Voting of Shares. When a quorum is present at any meeting, the vote of the
holders of a majority of the shares of stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the question is one upon
which by express provision of the statutes or of the Certificate of Incorporation, a different vote
is required in which case such express provision shall govern and control the decision of such
question.
Unless otherwise provided in the Certificate of Incorporation, each stockholder shall at every
meeting of stockholders be entitled to one vote in person or by proxy for each share of the capital
stock having voting power held by such stockholder, but no proxy shall be voted on after three
years from its date, unless the proxy provides for a longer period.
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At all elections of directors of the corporation each stockholder having voting power shall be
entitled to exercise the right of cumulative voting as provided in the Certificate of
Incorporation.
2.09. Action By Written Consent. Unless otherwise provided in the Certificate of
Incorporation, any action required to be taken at any annual or special meeting of stockholders of
the corporation, or any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares
of stock having not less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in writing.
ARTICLE III. DIRECTORS
3.01. General Powers and Number. The business of the corporation shall be managed by
or under the direction of its Board of Directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these bylaws directed or required to be exercised or done by the stockholders
or by others.
The number of directors which shall constitute the whole Board of Directors (sometimes
referred to herein as the Board) shall be one (1). The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 3.02 of this Article, and each director
elected shall hold office until his or her successor is elected and qualified or until his or her
prior death, resignation or removal. The number of directors may be increased or decreased from
time to time by amendment to this Section, adopted by the stockholders or Board of Directors, but
no decrease shall have the effect of shortening the term of an incumbent director. Directors need
not be stockholders.
3.02. Vacancies. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of the directors then in
office, though less than a quorum, or by a sole remaining director, and the directors so chosen
shall hold office until the next annual election and until their successors are duly elected and
shall qualify, unless sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of filling any vacancy or
any newly created directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery
may, upon application of any stockholder or stockholders holding at least ten percent of the total
number of the shares at the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office.
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3.03. Annual Meeting. The first meeting of each newly elected Board of Directors
shall be held following the annual meeting of stockholders at which such Board of Directors was
elected at the same place as such annual meeting of stockholders and no notice of such meeting
shall be necessary to the newly elected directors in order legally to constitute the meeting,
provided a quorum shall be present. In the event such meeting is not so held, the meeting may be
held at such time and place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a written waiver signed by
all of the directors.
3.04. Regular Meetings. Regular meetings of the Board of Directors may be held
within or without the State of Delaware without notice, at such time and at such place as shall
from time to time be determined by the Board.
3.05. Special Meetings. Special meetings of the Board may be held within or without
the State of Delaware and may be called by the President on forty-eight hours notice to each
director, either personally or by mail or by telegram; special meetings shall be called by the
President or Secretary in like manner and on like notice on the written request of two directors.
3.06. Quorum. At all meetings a majority of the number of directors as provided in
Section 3.01 shall constitute a quorum for the transaction of business at any meeting of the Board
of Directors and the act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided
by statute or by the Certificate of Incorporation. If a quorum shall not be present at any meeting
of the Board of Directors the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be present.
3.07. Action By Unanimous Written Consent. Unless otherwise restricted by the
Certificate of Incorporation or these bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if
all members of the Board or committee, as the case may be, consent thereto in writing, and the
writings are filed with the minutes of proceedings of the Board or committee.
3.08. Participation By Conference Telephone. Unless otherwise restricted by the
Certificate of Incorporation or these bylaws, members of the Board of Directors, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors, or
any committee, by means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
3.09. Committees of Directors. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to consist of one or
more of the directors of the corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member
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of the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation (except that a
committee may, to the extent authorized in the resolutions providing for the issuance of shares of
stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or
rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of
the corporation or the conversion into, or the exchange of such shares for, shares of any other
class or classes or any other series of the same or any other class or classes of stock of the
corporation), adopting an agreement of merger or consolidation, recommending to the stockholders
the sale, lease or exchange of all or substantially all of the corporations property and assets,
recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the bylaws of the corporation; and, unless the resolution or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or authority to declare
a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger.
Such committee or committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of directors when required.
3.10. Compensation. Unless otherwise restricted by the Certificate of Incorporation
or these bylaws, the Board of Directors shall have the authority to fix the compensation of
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 a stated salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee meetings.
3.11. Removal of Directors. Unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board of Directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an election of directors.
ARTICLE IV. NOTICES
4.01. Notice. Whenever, under the provisions of the statutes or of the Certificate
of Incorporation or of these bylaws, notice is required to be given to any director or stockholder,
it shall not be construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Notice to directors may also be given
by telegram.
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4.02. Waiver of Notice. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these bylaws, a waiver
thereof in writing, signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
ARTICLE V. OFFICERS
5.01. Number. The officers of the corporation shall be chosen by the Board of
Directors and shall be a President, a Vice President, a Secretary and a Treasurer. The Board of
Directors may also choose additional Vice Presidents, and one or more assistant secretaries and
assistant treasurers. Any number of offices may be held by the same person, unless the Certificate
of Incorporation or these bylaws otherwise provide.
5.02. Election and Term of Office. The Board of Directors at its first meeting after
each annual meeting of stockholders shall elect officers who shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the Board of Directors may
be removed at any time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the corporation shall be filled by the Board of Directors.
5.03. The President. The President shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the Board of Directors, shall
have general and active management of the business of the corporation and shall see that all orders
and resolutions of the Board of Directors are carried into effect. The President shall direct the
affairs and policies of the corporation, subject to any direction which may be given by the Board
of Directors. The President shall have authority to designate the duties and powers of the
officers and delegate special powers and duties to specified officers, so long as such designations
shall not be inconsistent with applicable laws, these bylaws, or action of the Board of Directors.
The President shall execute bonds, mortgages and other contracts requiring a seal, under the seal
of the corporation, except where required or permitted by law to be otherwise signed and executed
and except where the signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the corporation.
5.04. The Vice Presidents. In the absence of the President or in the event of his
inability or refusal to act, the Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the directors, or in the absence of any
designation, then in the order of their election) shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
5.05. The Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and shall record all the proceedings of the meetings
of the corporation and of the Board of Directors in a book to be kept for that purpose. The
Secretary shall perform like duties for the standing committees when required. The Secretary shall
give, or cause to be given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
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the Board of Directors or President, under whose supervision he or she shall be. The
Secretary shall have custody of the corporate seal of the corporation (if one is adopted by the
Board of Directors) and the Secretary, or an assistant secretary, shall have authority to affix the
same to any instrument requiring it. When so affixed, the corporate seal may be attested by the
Secretarys signature or by the signature of such assistant secretary. The Board of Directors may
give general authority to any other officer to affix the seal of the corporation and to attest the
affixing by his or her signature.
5.06. The Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all his or her transactions as Treasurer and of the financial condition of
the corporation. If required by the Board of Directors, the Treasurer shall give the corporation a
bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall
be satisfactory to the Board of Directors for the faithful performance of the duties of the office
and for the restoration to the corporation, in case of the Treasurers death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in the Treasurers possession or under his or her control belonging to the
corporation.
5.07. Assistant Secretaries and Assistant Treasurers. There shall be such number of
assistant secretaries and assistant treasurers as the Board of Directors may appoint as it shall
deem necessary. The assistant secretary, or if there be more than one, the assistant secretaries
in the order determined by the Board of Directors (or if there be no such determination, then in
the order of their election) may sign with the President or a Vice President certificates for
shares of the corporation the issuance of which shall have been authorized by a resolution of the
Board of Directors, and shall, in the absence of the Secretary or in the event of the Secretarys
inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the Board of Directors may from time to
time prescribe. The assistant secretary or assistant treasurer, in general, shall, in the absence
of the Secretary or Treasurer, as appropriate, or in the event of their inability or refusal to
act, perform the duties and exercise the powers of the Secretary or Treasurer, as appropriate, and
shall perform such other duties and have such other powers as the Board of Directors may from time
to time prescribe.
5.08. Other Assistants and Acting Officers. The Board of Directors may, from time to
time appoint such other officers and agents as it shall deem necessary who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall be determined from
time to time by the Board.
5.09. Salaries. The salaries of all officers and agents of the corporation shall be
fixed by the Board of Directors.
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ARTICLE VI.
CERTIFICATE FOR SHARES OF STOCK
AND THEIR TRANSFER
CERTIFICATE FOR SHARES OF STOCK
AND THEIR TRANSFER
6.01. Certificate for Shares. The shares of the corporation may be represented by a
certificate or may be uncertificated. Certificates shall be signed by, or in the name of the
corporation by, the chairman or vice chairman of the Board of Directors, if any, or the President
or a Vice President and the Treasurer or an assistant treasurer, or the Secretary or an assistant
secretary of the corporation, certifying the number of shares owned by such holder in the
corporation.
Upon the face or back of each stock certificate issued to represent any partly paid shares, or
upon the books and records of the corporation in the case of uncertificated partly paid shares,
shall be set forth the total amount of the consideration to be paid therefor and the amount paid
thereon shall be stated.
If the corporation shall be authorized to issue more than one class of stock or more than one
series of any class, the powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the corporation shall issue to represent such class or series of
stock, provided that, except as otherwise provided in Section 202 of the General Corporation Law of
Delaware (the DGCL), in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the corporation shall issue to represent such class or series of
stock, a statement that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Within a reasonable time after the issuance or transfer of uncertificated stock, the
corporation shall send to the registered owner thereof a written notice containing the information
required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a)
or a statement that the corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
6.02. Facsimile Signatures. Any of or all the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the corporation with the same
effect as if that person were such officer, transfer agent or registrar at the date of issue.
6.03. Lost Certificates. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates theretofore issued by the
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corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or his or her legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a bond in such sum as it
may direct as indemnity against any claim that may be made against the corporation with respect to
the certificate alleged to have been lost, stolen or destroyed.
6.04. Transfers of Shares. Upon surrender to the corporation or the transfer agent
of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the corporation to issue
a new certificate to the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
6.05. Registered Stockholders. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a person registered on its
books as the owner of shares. The corporation shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by the laws of the
State of Delaware.
ARTICLE VII.
INDEMNIFICATION
INDEMNIFICATION
7.01. 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 (including, without limitation, as a
witness) in any actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a proceeding), by reason of the fact that he or she
is or was a director or officer of the corporation or that, being or having been such a director or
officer of the corporation, he or she is or was serving at the request of the corporation as a
director or officer of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan (hereinafter an
indemnitee), whether the basis of such proceeding is alleged action in an official capacity as
such a director or officer or in any other capacity while serving as such a director or officer,
shall be indemnified and held harmless by the corporation to the full extent permitted 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
permitted prior thereto), or by other applicable law as then in effect, against all expense,
liability and loss (including attorneys fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) actually and reasonably incurred or suffered by such indemnitee in
connection therewith and such indemnification 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
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indemnitees heirs, executors and administrators; provided, however, that
except as provided in subsection 7.02 hereof with respect to proceedings seeking to enforce rights
to indemnification, the corporation shall indemnify any such indemnitee in connection with a
proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized or ratified by the Board. The right to indemnification conferred in this subsection
7.01 shall be a contract right and shall include the right to be paid by the corporation the
expenses incurred in defending any such proceeding in advance of its final disposition (hereinafter
an advancement of expenses); provided, however, that if the DGCL 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 such indemnitee, including,
without limitation, service to an employee benefit plan) shall be made only upon delivery to the
corporation of an undertaking (hereinafter an undertaking), by or on behalf of such 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 that such indemnitee is not entitled to be
indemnified for such expenses under this subsection 7.01 or otherwise.
7.02. Right of Indemnitee to Bring Suit. If a claim under subsection 7.01 hereof is
not paid in full by the corporation within sixty 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 twenty days, the indemnitee may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim. 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. The indemnitee shall be presumed to be entitled
to indemnification under this Article VII upon submission of a written claim (and, in an action
brought to enforce a claim for an advancement of expenses, where the undertaking, if any is
required, has been tendered to the corporation), and thereafter the corporation shall have the
burden of proof to overcome the presumption that the indemnitee is not so entitled. Neither the
failure of the corporation (including its Board, independent legal counsel or stockholders) to have
made a determination prior to the commencement of such suit that indemnification of the indemnitee
is proper in the circumstances nor an actual determination by the corporation (including its Board,
independent legal counsel or stockholders) that the indemnitee is not entitled to indemnification
shall be a defense to the suit or create a presumption that the indemnitee is not so entitled.
7.03. Nonexclusivity of Rights. The rights to indemnification and to the advancement
of expenses conferred in this Article VII shall not be exclusive of any other right that any person
may have or hereafter acquire under any statute, agreement, vote of stockholders or disinterested
directors, provisions of the corporations Certificate of Incorporation or these Bylaws or
otherwise. Notwithstanding any amendment to or repeal of this Article VII, any indemnitee shall be
entitled to indemnification in accordance with the provisions hereof and thereof with respect to
any acts or omissions of such indemnitee occurring prior to such amendment or repeal.
7.04. Insurance, Contracts and Funding. 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
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any expense, liability or loss, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under the DGCL. The corporation,
without further stockholder approval, may enter into contracts with any director, officer, employee
or agent in furtherance of the provisions of this Article VII and may create a trust fund, grant a
security interest or use other means (including, without limitation, a letter of credit) to ensure
the payment of such amounts as may be necessary to effect indemnification as provided in this
Article VII.
7.05. Indemnification of Employees and Agents of the Corporation. The corporation
may, by action of the Board, grant rights to indemnification and advancement of expenses to
employees or agents or groups of employees or agents of the corporation with the same scope and
effect as the provisions of this Article VII with respect to the indemnification and advancement of
expenses of directors and officers of the corporation; provided, however, that an
undertaking shall be made by an employee or agent only if required by the Board.
7.06. Persons Serving Other Entities. Any person who is or was a director or officer
of the corporation who is or was serving (a) as a director or officer of another corporation of
which a majority of the shares entitled to vote in the election of its directors is held by the
corporation or (b) in an executive or management capacity in a partnership, limited liability
company, joint venture, trust or other enterprise of which the corporation or a wholly owned
subsidiary of the corporation is a general partner or manager or has a majority ownership shall be
deemed to be so serving at the request of the corporation and entitled to indemnification and
advancement of expenses under subsection 7.01 hereof.
ARTICLE VIII. GENERAL PROVISIONS
8.01. Dividends. Dividends upon the capital stock of the corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors
at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of the corporation
available for dividends such sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was created.
8.02. Annual Statement. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the stockholders, a full
and clear statement of the business and condition of the corporation.
8.03. Checks. All checks or demands for money and notes of the corporation shall be
signed by such officer or officers or such other person or persons as the Board of Directors may
from time to time designate.
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8.04. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution
of the Board of Directors.
8.05. Seal. The corporation may have a seal which shall have inscribed thereon the
name of the corporation and the words Corporate Seal, Delaware. The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE IX. AMENDMENTS
These bylaws may be altered, amended or repealed or new bylaws may be adopted by the
stockholders or by the Board of Directors, when such power is conferred upon the Board of Directors
by the Certificate of Incorporation, at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of Directors if notice of
such alteration, amendment, repeal or adoption of new bylaws be contained in the notice of such
special meeting. If the power to adopt, amend or repeal bylaws is conferred upon the Board of
Directors by the Certificate of Incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
Any action taken or authorized by the stockholders or by the Board of Directors, which would
be inconsistent with the Bylaws then in effect but is taken or authorized by a vote that would be
sufficient to amend the Bylaws so that the Bylaws would be consistent with such action, shall be
given the same effect as though the Bylaws had been temporarily amended or suspended so far, but
only so far, as is necessary to permit the specific action so taken or authorized.
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