Attached files
file | filename |
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EX-4.7 - EX-4.7 - ENDOCYTE INC | f56327a2exv4w7.htm |
EX-3.3 - EX-3.3 - ENDOCYTE INC | f56327a2exv3w3.htm |
EX-3.2 - EX-3.2 - ENDOCYTE INC | f56327a2exv3w2.htm |
EX-3.1 - EX-3.1 - ENDOCYTE INC | f56327a2exv3w1.htm |
EX-23.1 - EX-23.1 - ENDOCYTE INC | f56327a2exv23w1.htm |
EX-10.18 - EX-10.18 - ENDOCYTE INC | f56327a2exv10w18.htm |
EX-10.17 - EX-10.17 - ENDOCYTE INC | f56327a2exv10w17.htm |
EX-10.19 - EX-10.19 - ENDOCYTE INC | f56327a2exv10w19.htm |
S-1/A - S-1/A - ENDOCYTE INC | f56327a2sv1za.htm |
Exhibit 3.5
AMENDED AND RESTATED BYLAWS OF
ENDOCYTE, INC.
(as amended and restated on November 10, 2010 and effective as of the
closing of the corporations initial public offering)
closing of the corporations initial public offering)
TABLE OF CONTENTS
Page | ||||
ARTICLE I CORPORATE OFFICES |
1 | |||
1.1 REGISTERED OFFICE |
1 | |||
1.2 OTHER OFFICES |
1 | |||
ARTICLE II MEETINGS OF STOCKHOLDERS |
1 | |||
2.1 PLACE OF MEETINGS |
1 | |||
2.2 ANNUAL MEETING |
1 | |||
2.3 SPECIAL MEETING |
1 | |||
2.4 ADVANCE NOTICE PROCEDURES |
2 | |||
2.5 NOTICE OF STOCKHOLDERS MEETINGS |
6 | |||
2.6 QUORUM |
6 | |||
2.7 ADJOURNED MEETING; NOTICE |
6 | |||
2.8 CONDUCT OF BUSINESS |
6 | |||
2.9 VOTING |
7 | |||
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING |
7 | |||
2.11 RECORD DATES |
7 | |||
2.12 PROXIES |
8 | |||
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE |
8 | |||
2.14 INSPECTORS OF ELECTION |
9 | |||
ARTICLE III DIRECTORS |
9 | |||
3.1 POWERS |
9 | |||
3.2 NUMBER OF DIRECTORS |
9 | |||
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS |
9 | |||
3.4 RESIGNATION AND VACANCIES |
10 | |||
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE |
10 | |||
3.6 REGULAR MEETINGS |
10 | |||
3.7 SPECIAL MEETINGS; NOTICE |
11 | |||
3.8 QUORUM; VOTING |
11 | |||
3.9 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING |
11 | |||
3.10 FEES AND COMPENSATION OF DIRECTORS |
12 | |||
3.11 REMOVAL OF DIRECTORS |
12 | |||
ARTICLE IV COMMITTEES |
12 | |||
4.1 COMMITTEES OF DIRECTORS |
12 | |||
4.2 COMMITTEE MINUTES |
12 | |||
4.3 MEETINGS AND ACTION OF COMMITTEES |
12 | |||
4.4 SUBCOMMITTEES |
13 | |||
ARTICLE V OFFICERS |
13 | |||
5.1 OFFICERS |
13 | |||
5.2 APPOINTMENT OF OFFICERS |
14 | |||
5.3 SUBORDINATE OFFICERS |
14 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
5.4 REMOVAL AND RESIGNATION OF OFFICERS |
14 | |||
5.5 VACANCIES IN OFFICES |
14 | |||
5.6 REPRESENTATION OF SHARES OF OTHER CORPORATIONS |
14 | |||
5.7 AUTHORITY AND DUTIES OF OFFICERS |
15 | |||
ARTICLE VI STOCK |
15 | |||
6.1 STOCK CERTIFICATES; PARTLY PAID SHARES |
15 | |||
6.2 SPECIAL DESIGNATION ON CERTIFICATES |
15 | |||
6.3 LOST, STOLEN OR DESTROYED CERTIFICATES |
16 | |||
6.4 DIVIDENDS |
16 | |||
6.5 TRANSFER OF STOCK |
16 | |||
6.6 STOCK TRANSFER AGREEMENTS |
16 | |||
6.7 REGISTERED STOCKHOLDERS |
17 | |||
ARTICLE VII MANNER OF GIVING NOTICE AND WAIVER |
17 | |||
7.1 NOTICE OF STOCKHOLDERS MEETINGS |
17 | |||
7.2 NOTICE BY ELECTRONIC TRANSMISSION |
17 | |||
7.3 NOTICE TO STOCKHOLDERS SHARING AN ADDRESS |
18 | |||
7.4 NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL |
18 | |||
7.5 WAIVER OF NOTICE |
18 | |||
ARTICLE VIII INDEMNIFICATION |
19 | |||
8.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS |
19 | |||
8.2 INDEMNIFICATION OF DIRECTORS AND OFFICERS IN ACTIONS BY OR IN THE RIGHT
OF THE CORPORATION |
19 | |||
8.3 SUCCESSFUL DEFENSE |
20 | |||
8.4 INDEMNIFICATION OF OTHERS |
20 | |||
8.5 ADVANCED PAYMENT OF EXPENSES |
20 | |||
8.6 LIMITATION ON INDEMNIFICATION |
20 | |||
8.7 DETERMINATION; CLAIM |
21 | |||
8.8 NON-EXCLUSIVITY OF RIGHTS |
21 | |||
8.9 INSURANCE |
21 | |||
8.10 SURVIVAL |
22 | |||
8.11 EFFECT OF REPEAL OR MODIFICATION |
22 | |||
8.12 CERTAIN DEFINITIONS |
22 | |||
ARTICLE IX GENERAL MATTERS |
22 | |||
9.1 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS |
22 | |||
9.2 FISCAL YEAR |
22 | |||
9.3 SEAL |
23 | |||
9.4 CONSTRUCTION; DEFINITIONS |
23 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
ARTICLE X AMENDMENTS |
23 |
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AMENDED AND RESTATED BYLAWS OF ENDOCYTE, INC.
ARTICLE I CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of Endocyte, Inc. shall be fixed in the corporations certificate of
incorporation. References in these bylaws to the certificate of incorporation shall mean the
certificate of incorporation of the corporation, as amended from time to time, including the terms
of any certificate of designations of any series of Preferred Stock.
1.2 OTHER OFFICES
The corporations board of directors may at any time establish other offices at any place or
places where the corporation is qualified to do business.
ARTICLE II MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place, within or outside the State of Delaware,
designated by the board of directors. The board of directors may, in its sole discretion, determine
that a meeting of stockholders shall not be held at any place, but may instead be held solely by
means of remote communication as authorized by Section 211(a)(2) of the General Corporation Law of
the State of Delaware (the DGCL). In the absence of any such designation or determination,
stockholders meetings shall be held at the corporations principal executive office.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held on such date, at such time, and at such place
(if any) within or without the State of Delaware as shall be designated from time to time by the
board of directors and stated in the corporations notice of the meeting. At the annual meeting,
directors shall be elected and any other proper business may be transacted.
2.3 SPECIAL MEETING
(i) A special meeting of the stockholders, other than those required by statute, may be called
at any time only by (A) the board of directors, (B) the chairperson of the board of directors, (C)
the chief executive officer or (D) the president (in the absence of a chief executive officer). A
special meeting of the stockholders may not be called by any other person or persons. The board of
directors may cancel, postpone or reschedule any previously scheduled special meeting at any time,
before or after the notice for such meeting has been sent to the stockholders.
(ii) The notice of a special meeting shall include the purpose for which the meeting is
called. Only such business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting by or at the direction of the board of directors, the chairperson
of the board of directors, the chief executive officer or the president (in the absence of a chief
executive officer). Nothing contained in this Section 2.3(ii) shall be construed as limiting,
fixing or affecting the time when a meeting of stockholders called by action of the board of
directors may be held.
2.4 ADVANCE NOTICE PROCEDURES
(i) Advance Notice of Stockholder Business. At an annual meeting of the stockholders, only
such business shall be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be brought: (A) pursuant to the
corporations proxy materials with respect to such meeting, (B) by or at the direction of the board
of directors, or (C) by a stockholder of the corporation who (1) is a stockholder of record at the
time of the giving of the notice required by this Section 2.4(i) and on the record date for the
determination of stockholders entitled to vote at the annual meeting and (2) has timely complied in
proper written form with the notice procedures set forth in this Section 2.4(i). In addition, for
business to be properly brought before an annual meeting by a stockholder, such business must be a
proper matter for stockholder action pursuant to these bylaws and applicable law. Except for
proposals properly made in accordance with Rule 14a-8 under the Securities and Exchange Act of
1934, and the rules and regulations thereunder (as so amended and inclusive of such rules and
regulations), and included in the notice of meeting given by or at the direction of the board of
directors, for the avoidance of doubt, clause (C) above shall be the exclusive means for a
stockholder to bring business before an annual meeting of stockholders.
(a) To comply with clause (C) of Section 2.4(i) above, a stockholders notice must set forth
all information required under this Section 2.4(i) and must be timely received by the secretary of
the corporation. To be timely, a stockholders notice must be received by the secretary at the
principal executive offices of the corporation not later than the 45th day nor earlier than the
75th day before the one-year anniversary of the date on which the corporation first mailed its
proxy materials or a notice of availability of proxy materials (whichever is earlier) for the
preceding years annual meeting; provided, however, that in the event that no annual meeting was
held in the previous year or if the date of the annual meeting is advanced by more than 30 days
prior to or delayed by more than 60 days after the one-year anniversary of the date of the previous
years annual meeting, then, for notice by the stockholder to be timely, it must be so received by
the secretary not earlier than the close of business on the 120th day prior to such annual meeting
and not later than the close of business on the later of (i) the 90th day prior to such annual
meeting, or (ii) the tenth day following the day on which Public Announcement (as defined below) of
the date of such annual meeting is first made. In no event shall any adjournment or postponement of
an annual meeting or the announcement thereof commence a new time period for the giving of a
stockholders notice as described in this Section 2.4(i)(a). Public Announcement shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by the corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange
Act of 1934, as amended, or any successor thereto (the 1934 Act).
(b) To be in proper written form, a stockholders notice to the secretary must set forth as to
each matter of business the stockholder intends to bring before the annual meeting: (1) a brief
description of the business intended to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (2) the name and address, as they appear on the
corporations books, of the
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stockholder proposing such business and any Stockholder Associated Person (as defined below),
(3) the class and number of shares of the corporation that are held of record or are beneficially
owned by the stockholder or any Stockholder Associated Person and any derivative positions held or
beneficially held by the stockholder or any Stockholder Associated Person, (4) whether and the
extent to which any hedging or other transaction or series of transactions has been entered into by
or on behalf of such stockholder or any Stockholder Associated Person with respect to any
securities of the corporation, and a description of any other agreement, arrangement or
understanding (including any short position or any borrowing or lending of shares), the effect or
intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes
for, or to increase or decrease the voting power of, such stockholder or any Stockholder Associated
Person with respect to any securities of the corporation, (5) any material interest of the
stockholder or a Stockholder Associated Person in such business, and (6) a statement whether either
such stockholder or any Stockholder Associated Person will deliver a proxy statement and form of
proxy to holders of at least the percentage of the corporations voting shares required under
applicable law to carry the proposal (such information provided and statements made as required by
clauses (1) through (6), a Business Solicitation Statement). In addition, to be in proper written
form, a stockholders notice to the secretary must be supplemented not later than ten days
following the record date for notice of the meeting to disclose the information contained in
clauses (3) and (4) above as of the record date for notice of the meeting. For purposes of this
Section 2.4, a Stockholder Associated Person of any stockholder shall mean (i) any person
controlling, directly or indirectly, or acting in concert with, such stockholder, (ii) any
beneficial owner of shares of stock of the corporation owned of record or beneficially by such
stockholder and on whose behalf the proposal or nomination, as the case may be, is being made, or
(iii) any person controlling, controlled by or under common control with such person referred to in
the preceding clauses (i) and (ii).
(c) Without exception, no business shall be conducted at any annual meeting except in
accordance with the provisions set forth in this Section 2.4(i) and, if applicable, Section
2.4(ii). In addition, business proposed to be brought by a stockholder may not be brought before
the annual meeting if such stockholder or a Stockholder Associated Person, as applicable, takes
action contrary to the representations made in the Business Solicitation Statement applicable to
such business or if the Business Solicitation Statement applicable to such business contains an
untrue statement of a material fact or omits to state a material fact necessary to make the
statements therein not misleading. The chairperson of the annual meeting shall, if the facts
warrant, determine and declare at the annual meeting that business was not properly brought before
the annual meeting and in accordance with the provisions of this Section 2.4(i), and, if the
chairperson should so determine, he or she shall so declare at the annual meeting that any such
business not properly brought before the annual meeting shall not be conducted.
(ii) Advance Notice of Director Nominations at Annual Meetings. Notwithstanding anything in
these bylaws to the contrary, only persons who are nominated in accordance with the procedures set
forth in this Section 2.4(ii) shall be eligible for election or re-election as directors at an
annual meeting of stockholders. Nominations of persons for election or re-election to the board of
directors of the corporation shall be made at an annual meeting of stockholders only (A) by or at
the direction of the board of directors or (B) by a stockholder of the corporation who (1) was a
stockholder of record at the time of the giving of the notice required by this Section 2.4(ii) and
on the record date for the determination of stockholders entitled to vote at the annual meeting and
(2) has complied with the notice procedures set forth in this Section 2.4(ii). In addition to any
other applicable requirements, for a nomination to be made by a stockholder, the stockholder must
have given timely notice thereof in proper written form to the secretary of the corporation.
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(a) To comply with clause (B) of Section 2.4(ii) above, a nomination to be made by a
stockholder must set forth all information required under this Section 2.4(ii) and must be received
by the secretary of the corporation at the principal executive offices of the corporation at the
time set forth in, and in accordance with, the final three sentences of Section 2.4(i)(a) above.
(b) To be in proper written form, such stockholders notice to the secretary must set forth:
(1) as to each person (a nominee) whom the stockholder proposes to nominate for election or
re-election as a director: (A) the name, age, business address and residence address of the
nominee, (B) the principal occupation or employment of the nominee, (C) the class and number of
shares of the corporation that are held of record or are beneficially owned by the nominee and any
derivative positions held or beneficially held by the nominee, (D) whether and the extent to which
any hedging or other transaction or series of transactions has been entered into by or on behalf of
the nominee with respect to any securities of the corporation, and a description of any other
agreement, arrangement or understanding (including any short position or any borrowing or lending
of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit
of share price changes for, or to increase or decrease the voting power of the nominee, (E) a
description of all arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the nominations are to be
made by the stockholder, (F) a written statement executed by the nominee acknowledging that as a
director of the corporation, the nominee will owe a fiduciary duty under Delaware law with respect
to the corporation and its stockholders, and (G) any other information relating to the nominee that
would be required to be disclosed about such nominee if proxies were being solicited for the
election or re-election of the nominee as a director, or that is otherwise required, in each case
pursuant to Regulation 14A under the 1934 Act (including without limitation the nominees written
consent to being named in the proxy statement, if any, as a nominee and to serving as a director if
elected or re-elected, as the case may be); and
(2) as to such stockholder giving notice, (A) the information required to be provided pursuant
to clauses (2) through (5) of Section 2.4(i)(b) above, and the supplement referenced in the second
sentence of Section 2.4(i)(b) above (except that the references to business in such clauses shall
instead refer to nominations of directors for purposes of this paragraph), and (B) a statement
whether either such stockholder or Stockholder Associated Person will deliver a proxy statement and
form of proxy to holders of a number of the corporations voting shares reasonably believed by such
stockholder or Stockholder Associated Person to be necessary to elect or re-elect such nominee(s)
(such information provided and statements made as required by clauses (A) and (B) above, a Nominee
Solicitation Statement).
(c) At the request of the board of directors, any person nominated by a stockholder for
election or re-election as a director must furnish to the secretary of the corporation (1) that
information required to be set forth in the stockholders notice of nomination of such person as a
director as of a date subsequent to the date on which the notice of such persons nomination was
given and (2) such other information as may reasonably be required by the corporation to determine
the eligibility of such proposed nominee to serve as an independent director or audit committee
financial expert of the corporation under applicable law, securities exchange rule or regulation,
or any publicly-disclosed corporate governance guideline or committee charter of the corporation
and (3) that could be material to a reasonable stockholders understanding of the independence, or
lack thereof, of such nominee; in the absence of the furnishing of such information if requested,
such stockholders nomination shall not be considered in proper form pursuant to this Section
2.4(ii).
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(d) Without exception, no person shall be eligible for election or re-election as a director
of the corporation at an annual meeting of stockholders unless nominated in accordance with the
provisions set forth in this Section 2.4(ii). In addition, a nominee shall not be eligible for
election or re-election if a stockholder or Stockholder Associated Person, as applicable, takes
action contrary to the representations made in the Nominee Solicitation Statement applicable to
such nominee or if the Nominee Solicitation Statement applicable to such nominee contains an untrue
statement of a material fact or omits to state a material fact necessary to make the statements
therein not misleading. The chairperson of the annual meeting shall, if the facts warrant,
determine and declare at the annual meeting that a nomination was not made in accordance with the
provisions prescribed by these bylaws, and if the chairperson should so determine, he or she shall
so declare at the annual meeting, and the defective nomination shall be disregarded.
(iii) Advance Notice of Director Nominations for Special Meetings.
(a) For a special meeting of stockholders at which directors are to be elected or re-elected,
nominations of persons for election or re-election to the board of directors shall be made only (1)
by or at the direction of the board of directors or (2) by any stockholder of the corporation who
(A) is a stockholder of record at the time of the giving of the notice required by this Section
2.4(iii) and on the record date for the determination of stockholders entitled to vote at the
special meeting and (B) delivers a timely written notice of the nomination to the secretary of the
corporation that includes the information set forth in Sections 2.4(ii)(b) and (ii)(c) above. To be
timely, such notice must be received by the secretary at the principal executive offices of the
corporation not later than the close of business on the later of the 90th day prior to such special
meeting or the tenth day following the day on which Public Announcement is first made of the date
of the special meeting and of the nominees proposed by the board of directors to be elected or
re-elected at such meeting. A person shall not be eligible for election or re-election as a
director at a special meeting unless the person is nominated (i) by or at the direction of the
board of directors or (ii) by a stockholder in accordance with the notice procedures set forth in
this Section 2.4(iii). In addition, a nominee shall not be eligible for election or re-election if
a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the
representations made in the Nominee Solicitation Statement applicable to such nominee or if the
Nominee Solicitation Statement applicable to such nominee contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements therein not
misleading.
(b) The chairperson of the special meeting shall, if the facts warrant, determine and declare
at the meeting that a nomination or business was not made in accordance with the procedures
prescribed by these bylaws, and if the chairperson should so determine, he or she shall so declare
at the meeting, and the defective nomination or business shall be disregarded.
(iv) Other Requirements and Rights. In addition to the foregoing provisions of this Section
2.4, a stockholder must also comply with all applicable requirements of state law and of the 1934
Act and the rules and regulations thereunder with respect to the matters set forth in this Section
2.4. Nothing in this Section 2.4 shall be deemed to affect any rights of:
(a) a stockholder to request inclusion of proposals in the corporations proxy statement
pursuant to Rule 14a-8 (or any successor provision) under the 1934 Act; or
(b) the corporation to omit a proposal from the corporations proxy statement pursuant to Rule
14a-8 (or any successor provision) under the 1934 Act.
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2.5 NOTICE OF STOCKHOLDERS MEETINGS
Whenever stockholders are required or permitted to take any action at a meeting, a written
notice of the meeting shall be given which shall state the place, if any, date and hour of the
meeting, the means of remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such meeting, the record date for determining the
stockholders entitled to vote at the meeting, if such date is different from the record date for
determining stockholders entitled to notice of the meeting, and, in the case of a special meeting,
the purpose or purposes for which the meeting is called. Except as otherwise provided in the DGCL,
the certificate of incorporation or these bylaws, the written notice of any meeting of stockholders
shall be given not less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting as of the record date for determining the stockholders
entitled to notice of the meeting.
2.6 QUORUM
The holders of a majority of the stock issued and outstanding and entitled to vote, present in
person or represented by proxy, shall constitute a quorum for the transaction of business at all
meetings of the stockholders. Where a separate vote by a class or series or classes or series is
required, a majority of the outstanding shares of such class or series or classes or series,
present in person or represented by proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter, except as otherwise provided by law, the certificate of
incorporation or these bylaws
If a quorum is not present or represented at any meeting of the stockholders, then either (i)
the chairperson of the meeting, or (ii) the stockholders entitled to vote at the meeting, 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 is present or represented. At
such adjourned meeting at which a quorum is present or represented, any business may be transacted
that might have been transacted at the meeting as originally noticed.
2.7 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place, unless these bylaws otherwise require,
notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the
means of remote communications, if any, by which stockholders and proxy holders may be deemed to be
present in person and vote at such adjourned meeting are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for more than 30 days, a
notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at
the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed
for the adjourned meeting, the board of directors shall fix a new record date for notice of such
adjourned meeting in accordance with Section 213(a) of the DGCL and
Section 2.11 of these bylaws,
and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at
such adjourned meeting as of the record date fixed for notice of such adjourned meeting.
2.8 CONDUCT OF BUSINESS
The chairperson of any meeting of stockholders shall determine the order of business and the
procedure at the meeting, including such regulation of the manner of voting and the conduct of
business. The chairperson of any meeting of stockholders shall be designated by the board of
directors; in the absence of such designation, the chairperson of the board, if any, the chief
executive officer (in the absence of the chairperson) or the president (in
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the absence of the chairperson of the board and the chief executive officer), or in their
absence any other executive officer of the corporation, shall serve as chairperson of the
stockholder meeting.
2.9 VOTING
The stockholders entitled to vote at any meeting of stockholders shall be determined in
accordance with the provisions of Section 2.11 of these bylaws, subject to Section 217 (relating to
voting rights of fiduciaries, pledgors and joint owners of stock) and Section 218 (relating to
voting trusts and other voting agreements) of the DGCL.
Except as may be otherwise provided in the certificate of incorporation or these bylaws, each
stockholder shall be entitled to one vote for each share of capital stock held by such stockholder.
Except as otherwise required by law, the certificate of incorporation or these bylaws, in all
matters other than the election of directors, the affirmative vote of a majority of the voting
power of the shares present in person or represented by proxy at the meeting and entitled to vote
on the subject matter shall be the act of the stockholders. Except as otherwise required by law,
the certificate of incorporation or these bylaws, directors shall be elected by a plurality of the
voting power of the shares present in person or represented by proxy at the meeting and entitled to
vote on the election of directors. Where a separate vote by a class or series or classes or series
is required, in all matters other than the election of directors, the affirmative vote of the
majority of shares of such class or series or classes or series present in person or represented by
proxy at the meeting shall be the act of such class or series or classes or series, except as
otherwise provided by law, the certificate of incorporation or these bylaws.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Subject to the rights of the holders of the shares of any series of Preferred Stock or any
other class of stock or series thereof that have been expressly granted the right to take action by
written consent, any action required or permitted to be taken by the stockholders of the
corporation must be effected at a duly called annual or special meeting of stockholders of the
corporation and may not be effected by any consent in writing by such stockholders.
2.11 RECORD DATES
In order that the corporation may determine the stockholders entitled to notice of any meeting
of stockholders or any adjournment thereof, 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 shall not be more than 60 nor less than 10 days
before the date of such meeting. If the board of directors so fixes a date, such date shall also be
the record date for determining the stockholders entitled to vote at such meeting unless the board
of directors determines, at the time it fixes such record date, that a later date on or before the
date of the meeting shall be the date for making such determination.
If no record date is fixed by the board of directors, the record date for determining
stockholders entitled to notice of and 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.
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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 determination of stockholders entitled to vote at the
adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to
notice of such adjourned meeting the same or an earlier date as that fixed for determination of
stockholders entitled to vote in accordance with the provisions of Section 213 of the DGCL and this
Section 2.11 at the adjourned meeting.
In order that the corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the stockholders 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, and which record
date shall be not more than 60 days prior to such action. If no record date is fixed, the record
date for determining stockholders for any such purpose shall be at the close of business on the day
on which the board of directors adopts the resolution relating thereto.
2.12 PROXIES
Each stockholder entitled to vote at a meeting of stockholders may authorize another person or
persons to act for such stockholder by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the procedure established for the meeting,
but no such proxy shall be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Section 212 of the DGCL. A written proxy may be
in the form of a telegram, cablegram, or other means of electronic transmission which sets forth or
is submitted with information from which it can be determined that the telegram, cablegram, or
other means of electronic transmission was authorized by the person.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of the corporation shall prepare and make, at
least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting; provided, however, if the record date for determining the stockholders
entitled to vote is less than 10 days before the meeting date, the list shall reflect the
stockholders entitled to vote as of the tenth day before the meeting date. The stockholder list
shall be arranged in alphabetical order and show the address of each stockholder and the number of
shares registered in the name of each stockholder. The corporation shall not be required to include
electronic mail addresses or other electronic contact information on such list. Such list shall be
open to the examination of any stockholder for any purpose germane to the meeting for a period of
at least 10 days prior to the meeting (i) on a reasonably accessible electronic network, provided
that the information required to gain access to such list is provided with the notice of the
meeting, or (ii) during ordinary business hours, at the corporations principal place of business.
In the event that the corporation determines to make the list available on an electronic network,
the corporation may take reasonable steps to ensure that such information is available only to
stockholders of the corporation. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
examined by any stockholder who is present. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination of any stockholder during the
whole time of the meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of the meeting. Such list shall
presumptively determine the identity of the stockholders entitled to vote at the meeting and the
number of shares held by each of them.
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2.14 INSPECTORS OF ELECTION
Before any meeting of stockholders, the board of directors shall appoint an inspector or
inspectors of election to act at the meeting or its adjournment. The number of inspectors shall be
either one (1) or three (3). If any person appointed as inspector fails to appear or fails or
refuses to act, then the chairperson of the meeting may, and upon the request of any stockholder or
a stockholders proxy shall, appoint a person to fill that vacancy.
Each inspector, before entering upon the discharge of his or her duties, shall take and sign
an oath to execute faithfully the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspector or inspectors so appointed and designated shall (i)
ascertain the number of shares of capital stock of the corporation outstanding and the voting power
of each share, (ii) determine the shares of capital stock of the corporation represented at the
meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine
and retain for a reasonable period a record of the disposition of any challenges made to any
determination by the inspectors, and (v) certify their determination of the number of shares of
capital stock of the corporation represented at the meeting and such inspector or inspectors count
of all votes and ballots.
In determining the validity and counting of proxies and ballots cast at any meeting of
stockholders of the corporation, the inspector or inspectors may consider such information as is
permitted by applicable law. If there are three (3) inspectors of election, the decision, act or
certificate of a majority is effective in all respects as the decision, act or certificate of all.
ARTICLE III DIRECTORS
3.1 POWERS
The business and affairs of the corporation shall be managed by or under the direction of the
board of directors, except as may be otherwise provided in the DGCL or the certificate of
incorporation.
3.2 NUMBER OF DIRECTORS
The board of directors shall consist of one or more members, each of whom shall be a natural
person. Unless the certificate of incorporation fixes the number of directors, the number of
directors shall be determined from time to time solely by resolution of the board of directors. No
reduction of the authorized number of directors shall have the effect of removing any director
before that directors term of office expires.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these bylaws, each director, including a director elected
to fill a vacancy, shall hold office until the expiration of the term for which elected and until
such directors successor is elected and qualified or until such directors earlier death,
resignation or removal. Directors need not be stockholders unless so required by the certificate of
incorporation or these bylaws. The certificate of incorporation or these bylaws may prescribe other
qualifications for directors.
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3.4 RESIGNATION AND VACANCIES
Any director may resign at any time upon notice given in writing or by electronic transmission
to the corporation; provided, however, that if such notice is given by electronic transmission,
such electronic transmission must either set forth or be submitted with information from which it
can be determined that the electronic transmission was authorized by the director. A resignation is
effective when the resignation is delivered unless the resignation specifies a later effective date
or an effective date determined upon the happening of an event or events. Acceptance of such
resignation shall not be necessary to make it effective. A resignation which is conditioned upon
the director failing to receive a specified vote for reelection as a director may provide that it
is irrevocable. Unless otherwise provided in the certificate of incorporation or these bylaws, when
one or more directors resign from the board of directors, effective at a future date, a majority of
the directors then in office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall
become effective.
Unless otherwise provided in the certificate of incorporation or these bylaws, vacancies and
newly created directorships resulting from any increase in the authorized number of directors
elected by all of the stockholders having the right to vote as a single class shall be filled only
by a majority of the directors then in office, although less than a quorum, or by a sole remaining
director. If the directors are divided into classes, a person so elected by the directors then in
office to fill a vacancy or newly created directorship shall hold office until the next election of
the class for which such director shall have been chosen and until his or her successor shall have
been duly elected and qualified.
If, at the time of filling any vacancy or any newly created directorship, the directors then
in office constitute less than a majority of the whole board of directors (as constituted
immediately prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least 10% of the voting stock 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 as aforesaid, which election shall be governed by the provisions of Section 211 of the
DGCL as far as applicable.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The board of directors may hold meetings, both regular and special, either within or outside
the State of Delaware.
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 other
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.
3.6 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice at such time and at such
place as shall from time to time be determined by the board of directors.
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3.7 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors for any purpose or purposes may be called at any
time by the chairperson of the board of directors, the chief executive officer, the president, the
secretary or a majority of the authorized number of directors, at such times and places as he or
she or they shall designate.
Notice of the time and place of special meetings shall be:
(i) delivered personally by hand, by courier or by telephone;
(ii) sent by United States first-class mail, postage prepaid;
(iii) sent by facsimile; or
(iv) sent by electronic mail,
directed to each director at that directors address, telephone number, facsimile number or
electronic mail address, as the case may be, as shown on the corporations records.
If the notice is (i) delivered personally by hand, by courier or by telephone, (ii) sent by
facsimile or (iii) sent by electronic mail, it shall be delivered or sent at least 24 hours before
the time of the holding of the meeting. If the notice is sent by United States mail, it shall be
deposited in the United States mail at least four days before the time of the holding of the
meeting. Any oral notice may be communicated to the director. The notice need not specify the place
of the meeting (if the meeting is to be held at the corporations principal executive office) nor
the purpose of the meeting.
3.8 QUORUM; VOTING
At all meetings of the board of directors, a majority of the total authorized number of
directors shall constitute a quorum for the transaction of business. If a quorum is not present at
any meeting of the board of directors, then the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until a quorum is
present. A meeting at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for that meeting.
The vote of a majority of the directors present at any meeting at which a quorum is present
shall be the act of the board of directors, except as may be otherwise specifically provided by
statute, the certificate of incorporation or these bylaws.
If the certificate of incorporation provides that one or more directors shall have more or
less than one vote per director on any matter, every reference in these bylaws to a majority or
other proportion of the directors shall refer to a majority or other proportion of the votes of the
directors.
3.9 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
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
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a meeting if all members of the board of directors or committee, as the case may be, consent
thereto in writing or by electronic transmission and the writing or writings or electronic
transmission or transmissions are filed with the minutes of proceedings of the board of directors
or committee. Such filing shall be in paper form if the minutes are maintained in paper form and
shall be in electronic form if the minutes are maintained in electronic form.
3.10 FEES AND COMPENSATION OF DIRECTORS
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.
3.11 REMOVAL OF DIRECTORS
A director may be removed from office by the stockholders of the corporation only for cause.
No reduction of the authorized number of directors shall have the effect of removing any
director prior to the expiration of such directors term of office.
ARTICLE IV COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The board of directors may designate one or more committees, each committee to consist of one
or more of the directors of the corporation. The board of directors 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
such member or members constitute a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors or in these bylaws,
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 that may require it; but no such committee shall have the
power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter
(other than the election or removal of directors) expressly required by the DGCL to be submitted to
stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the corporation.
4.2 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report the same to the board of
directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and taken in accordance
with, the provisions of:
(i) Section 3.5 (place of meetings and meetings by telephone);
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(ii) Section 3.6 (regular meetings);
(iii) Section 3.7 (special meetings; notice);
(iv) Section 3.8 (quorum; voting);
(v) Section 3.9 (action without a meeting); and
(vi) Section 7.5 (waiver of notice)
with such changes in the context of those bylaws as are necessary to substitute the committee and
its members for the board of directors and its members. However:
(i) the time of regular meetings of committees may be determined by resolution of the
committee;
(ii) special meetings of committees may also be called by resolution of the committee; and
(iii) notice of special meetings of committees shall also be given to all alternate members,
who shall have the right to attend all meetings of the committee. The board of directors may adopt
rules for the government of any committee not inconsistent with the provisions of these bylaws.
Any provision in the certificate of incorporation providing that one or more directors shall
have more or less than one vote per director on any matter shall apply to voting in any committee
or subcommittee, unless otherwise provided in the certificate of incorporation or these bylaws.
4.4 SUBCOMMITTEES
Unless otherwise provided in the certificate of incorporation, these bylaws or the resolutions
of the board of directors designating the committee, a committee may create one or more
subcommittees, each subcommittee to consist of one or more members of the committee, and delegate
to a subcommittee any or all of the powers and authority of the committee.
ARTICLE V OFFICERS
5.1 OFFICERS
The officers of the corporation shall be a president and a secretary. The corporation may also
have, at the discretion of the board of directors, a chairperson of the board of directors, a vice
chairperson of the board of directors, a chief executive officer, a chief financial officer or
treasurer, one or more vice presidents, one or more assistant vice presidents, one or more
assistant treasurers, one or more assistant secretaries, and any such other officers as may be
appointed in accordance with the provisions of these bylaws. Any number of offices may be held by
the same person.
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5.2 APPOINTMENT OF OFFICERS
The board of directors shall appoint the officers of the corporation, except such officers as
may be appointed in accordance with the provisions of Section 5.3 of these bylaws, subject to the
rights, if any, of an officer under any contract of employment. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall be filled in the manner
prescribed in this Section 5 for the regular election to such office.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or empower the chief executive officer or, in the absence
of a chief executive officer, the president, to appoint, such other officers and agents as the
business of the corporation may require. Each of such officers and agents shall hold office for
such period, have such authority, and perform such duties as are provided in these bylaws or as the
board of directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under any contract of employment, any officer may
be removed, either with or without cause, by an affirmative vote of the majority of the board of
directors at any regular or special meeting of the board of directors or, except in the case of an
officer chosen by the board of directors, by any officer upon whom such power of removal may be
conferred by the board of directors.
Any officer may resign at any time by giving written or electronic notice to the corporation;
provided, however, that if such notice is given by electronic transmission, such electronic
transmission must either set forth or be submitted with information from which it can be determined
that the electronic transmission was authorized by the officer. Any resignation shall take effect
at the date of the receipt of that notice or at any later time specified in that notice. Unless
otherwise specified in the notice of resignation, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the
corporation under any contract to which the officer is a party.
5.5 VACANCIES IN OFFICES
Any vacancy occurring in any office of the corporation shall be filled by the board of
directors or as provided in Section 5.3.
5.6 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairperson of the board of directors, the president, any vice president, the treasurer,
the secretary or assistant secretary of this corporation, or any other person authorized by the
board of directors or the president or a vice president, is authorized to vote, represent, and
exercise on behalf of this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The authority granted herein
may be exercised either by such person directly or by any other person authorized to do so by proxy
or power of attorney duly executed by such person having the authority.
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5.7 AUTHORITY AND DUTIES OF OFFICERS
All officers of the corporation shall respectively have such authority and perform such duties
in the management of the business of the corporation as may be designated from time to time by the
board of directors and, to the extent not so provided, as generally pertain to their respective
offices, subject to the control of the board of directors.
ARTICLE VI STOCK
6.1 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of the corporation shall be represented by certificates, provided that the board of
directors may provide by resolution or resolutions that some or all of any or all classes or series
of its stock shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the corporation. Every holder
of stock represented by certificates shall be entitled to have a certificate signed by, or in the
name of the corporation by the chairperson of the board of directors or vice-chairperson of the
board of directors, or the president or a vice-president, and by the treasurer or an assistant
treasurer, or the secretary or an assistant secretary of the corporation representing the number of
shares registered in certificate form. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has 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 such person were such officer, transfer agent or registrar at the date of issue. The
corporation shall not have power to issue a certificate in bearer form.
The corporation may issue the whole or any part of its shares as partly paid and subject to
call for the remainder of the consideration to be paid therefor. Upon the face or back of each
stock certificate issued to represent any such partly-paid shares, or upon the books and records of
the corporation in the case of uncertificated partly-paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration
of any dividend on fully-paid shares, the corporation shall declare a dividend upon partly-paid
shares of the same class, but only upon the basis of the percentage of the consideration actually
paid thereon.
6.2 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class of stock or more than one series
of any class, then the powers, the designations, the preferences, and the 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 shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall issue to represent
such class or series of stock; provided, however, that, except as otherwise provided in Section 202
of the DGCL, in lieu of the foregoing requirements there may be set forth on the face or back of
the certificate that 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 this
section 6.2 or Sections 156, 202(a) or
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218(a) of the DGCL or with respect to this section 6.2 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.
Except as otherwise expressly provided by law, the rights and obligations of the holders of
uncertificated stock and the rights and obligations of the holders of certificates representing
stock of the same class and series shall be identical.
6.3 LOST, STOLEN OR DESTROYED CERTIFICATES
Except as provided in this Section 6.3, no new certificates for shares shall be issued to
replace a previously issued certificate unless the latter is surrendered to the corporation and
cancelled at the same time. The corporation may issue a new certificate of stock or uncertificated
shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the corporation may require the owner of the lost, stolen or destroyed
certificate, or such owners legal representative, to give the corporation a bond sufficient to
indemnify it against any claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate or uncertificated
shares.
6.4 DIVIDENDS
The board of directors, subject to any restrictions contained in the certificate of
incorporation or applicable law, may declare and pay dividends upon the shares of the corporations
capital stock. Dividends may be paid in cash, in property, or in shares of the corporations
capital stock, subject to the provisions of the certificate of incorporation.
The board of directors may set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such
purposes shall include but not be limited to equalizing dividends, repairing or maintaining any
property of the corporation, and meeting contingencies.
6.5 TRANSFER OF STOCK
Transfers of record of shares of stock of the corporation shall be made only upon its books by
the holders thereof, in person or by an attorney duly authorized, and, if such stock is
certificated, upon the surrender of a certificate or certificates for a like number of shares,
properly endorsed or accompanied by proper evidence of succession, assignation or authority to
transfer; provided, however, that such succession, assignment or authority to transfer is not
prohibited by the certificate of incorporation, these bylaws, applicable law or contract.
6.6 STOCK TRANSFER AGREEMENTS
The corporation shall have power to enter into and perform any agreement with any number of
stockholders of any one or more classes of stock of the corporation to restrict the transfer of
shares of stock of the corporation of any one or more classes owned by such stockholders in any
manner not prohibited by the DGCL.
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6.7 REGISTERED STOCKHOLDERS
The corporation:
(i) 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;
(ii) shall be entitled to hold liable for calls and assessments the person registered on its
books as the owner of shares; and
(iii) shall not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of another person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII MANNER OF GIVING NOTICE AND WAIVER
7.1 NOTICE OF STOCKHOLDERS MEETINGS
Notice of any meeting of stockholders, if mailed, is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at such stockholders address as it appears on
the corporations records. An affidavit of the secretary or an assistant secretary of the
corporation or of the transfer agent or other agent of the corporation that the notice has been
given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
7.2 NOTICE BY ELECTRONIC TRANSMISSION
Without limiting the manner by which notice otherwise may be given effectively to stockholders
pursuant to the DGCL, the certificate of incorporation or these bylaws, any notice to stockholders
given by the corporation under any provision of the DGCL, the certificate of incorporation or these
bylaws shall be effective if given by a form of electronic transmission consented to by the
stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by
written notice to the corporation. Any such consent shall be deemed revoked if:
(i) the corporation is unable to deliver by electronic transmission two consecutive notices
given by the corporation in accordance with such consent; and
(ii) such inability becomes known to the secretary or an assistant secretary of the
corporation or to the transfer agent, or other person responsible for the giving of notice.
However, the inadvertent failure to treat such inability as a revocation shall not invalidate any
meeting or other action.
Any notice given pursuant to the preceding paragraph shall be deemed given:
(i) if by facsimile telecommunication, when directed to a number at
which the stockholder has consented to receive notice;
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(ii) | if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; | ||
(iii) | if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and | ||
(iv) | if by any other form of electronic transmission, when directed to the stockholder. |
An affidavit of the secretary or an assistant secretary or of the transfer agent or other
agent of the corporation that the notice has been given by a form of electronic transmission shall,
in the absence of fraud, be prima facie evidence of the facts stated therein.
An electronic transmission means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed
by a recipient thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process.
7.3 NOTICE TO STOCKHOLDERS SHARING AN ADDRESS
Except as otherwise prohibited under the DGCL, without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders given by the
corporation under the provisions of the DGCL, the certificate of incorporation or these bylaws
shall be effective if given by a single written notice to stockholders who share an address if
consented to by the stockholders at that address to whom such notice is given. Any such consent
shall be revocable by the stockholder by written notice to the corporation. Any stockholder who
fails to object in writing to the corporation, within 60 days of having been given written notice
by the corporation of its intention to send the single notice, shall be deemed to have consented to
receiving such single written notice.
7.4 NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL
Whenever notice is required to be given, under the DGCL, the certificate of incorporation or
these bylaws, to any person with whom communication is unlawful, the giving of such notice to such
person shall not be required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or meeting which
shall be taken or held without notice to any such person with whom communication is unlawful shall
have the same force and effect as if such notice had been duly given. In the event that the action
taken by the corporation is such as to require the filing of a certificate under the DGCL, the
certificate shall state, if such is the fact and if notice is required, that notice was given to
all persons entitled to receive notice except such persons with whom communication is unlawful.
7.5 WAIVER OF NOTICE
Whenever notice is required to be given to stockholders, directors or other persons under any
provision of the DGCL, the certificate of incorporation or these bylaws, a written waiver, signed
by the person entitled to notice, or a waiver by electronic transmission by the person entitled to
notice, whether before or after the time of the event for which notice is to be given, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the express purpose of
objecting at the beginning of the meeting, to the transaction of any business because the
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meeting is not lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders or the board of directors, as the
case may be, need be specified in any written waiver of notice or any waiver by electronic
transmission unless so required by the certificate of incorporation or these bylaws.
ARTICLE VIII INDEMNIFICATION
8.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS
Subject to the other provisions of this Article VIII, the corporation shall indemnify, to the
fullest extent permitted by the DGCL, as now or hereinafter in effect, any person who was or is a
party or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (a Proceeding) (other than
an action by or in the right of the corporation) by reason of the fact that such person is or was a
director of the corporation or an officer of the corporation, or while a director of the
corporation or officer of the corporation is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with such Proceeding if
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 action or
proceeding, had no reasonable cause to believe such persons conduct was unlawful. The termination
of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such persons conduct was unlawful.
8.2 INDEMNIFICATION OF DIRECTORS AND OFFICERS IN ACTIONS BY OR IN THE RIGHT OF THE CORPORATION
Subject to the other provisions of this Article VIII, the corporation shall indemnify, to the
fullest extent permitted by the DGCL, as now or hereinafter in effect, any person who was or is a
party or is threatened to be made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor by reason of the fact that
such person is or was a director or officer of the corporation, or while a director or officer of
the corporation is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if 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; except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
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8.3 SUCCESSFUL DEFENSE
To the extent that a present or former director or officer of the corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding described in
Section 8.1 or Section 8.2, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys fees) actually and reasonably incurred by
such person in connection therewith.
8.4 INDEMNIFICATION OF OTHERS
Subject to the other provisions of this Article VIII, the corporation shall have power to
indemnify its employees and its agents to the extent not prohibited by the DGCL or other applicable
law. The board of directors shall have the power to delegate the determination of whether employees
or agents shall be indemnified to such person or persons as the board of determines.
8.5 ADVANCED PAYMENT OF EXPENSES
Expenses (including attorneys fees) incurred by an officer or director of the corporation in
defending any Proceeding shall be paid by the corporation in advance of the final disposition of
such Proceeding upon receipt of a written request therefor (together with documentation reasonably
evidencing such expenses) and an undertaking by or on behalf of the person to repay such amounts if
it shall ultimately be determined that the person is not entitled to be indemnified under this
Article VIII or the DGCL. Such expenses (including attorneys fees) incurred by former directors
and officers or other employees and agents may be so paid upon such terms and conditions, if any,
as the corporation deems reasonably appropriate and shall be subject to the corporations expense
guidelines. The right to advancement of expenses shall not apply to any claim for which indemnity
is excluded pursuant to these bylaws, but shall apply to any Proceeding referenced in Section
8.6(ii) or 8.6(iii) prior to a determination that the person is not entitled to be indemnified by
the corporation.
8.6 LIMITATION ON INDEMNIFICATION
Subject to the requirements in Section 8.3 and the DGCL, the corporation shall not be
obligated to indemnify any person pursuant to this Article VIII in connection with any Proceeding
(or any part of any Proceeding):
(i) for which payment has actually been made to or on behalf of such person under any statute,
insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond
the amount paid;
(ii) for an accounting or disgorgement of profits pursuant to Section 16(b) of the 1934 Act,
or similar provisions of federal, state or local statutory law or common law, if such person is
held liable therefor (including pursuant to any settlement arrangements);
(iii) for any reimbursement of the corporation by such person of any bonus or other
incentive-based or equity-based compensation or of any profits realized by such person from the
sale of securities of the corporation, as required in each case under the 1934 Act (including any
such reimbursements that arise from an accounting restatement of the corporation pursuant to
Section 304 of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act), or the payment to the
corporation of profits arising from the purchase and sale by such
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person of securities in violation of Section 306 of the Sarbanes-Oxley Act), if such person is
held liable therefor (including pursuant to any settlement arrangements);
(iv) initiated by such person against the corporation or its directors, officers, employees,
agents or other indemnitees, unless (a) the board of directors authorized the Proceeding (or the
relevant part of the Proceeding) prior to its initiation, (b) the corporation provides the
indemnification, in its sole discretion, pursuant to the powers vested in the corporation under
applicable law, (c) otherwise required to be made under Section 8.7 or (d) otherwise required by
applicable law; or
(v) if prohibited by applicable law; provided, however, that if any provision or provisions of
this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(1) the validity, legality and enforceability of the remaining provisions of this Article VIII
(including, without limitation, each portion of any paragraph or clause containing any such
provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the
fullest extent possible, the provisions of this Article VIII (including, without limitation, each
such portion of any paragraph or clause containing any such provision held to be invalid, illegal
or unenforceable) shall be construed so as to give effect to the intent manifested by the provision
held invalid, illegal or unenforcebable.
8.7 DETERMINATION; CLAIM
If a claim for indemnification or advancement of expenses under this Article VIII is not paid
in full within 90 days after receipt by the corporation of the written request therefor, the
claimant shall be entitled to an adjudication by a court of competent jurisdiction of his or her
entitlement to such indemnification or advancement of expenses. The corporation shall indemnify
such person against any and all expenses that are incurred by such person in connection with any
action for indemnification or advancement of expenses from the corporation under this Article VIII,
to the extent such person is successful in such action, and to the extent not prohibited by law. In
any such suit, the corporation shall, to the fullest extent not prohibited by law, have the burden
of proving that the claimant is not entitled to the requested indemnification or advancement of
expenses.
8.8 NON-EXCLUSIVITY OF RIGHTS
The indemnification and advancement of expenses provided by, or granted pursuant to, this
Article VIII shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the certificate of incorporation
or any statute, bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in such persons official capacity and as to action in another capacity while
holding such office. The corporation is specifically authorized to enter into individual contracts
with any or all of its directors, officers, employees or agents respecting indemnification and
advancement of expenses, to the fullest extent not prohibited by the DGCL or other applicable law.
8.9 INSURANCE
The corporation may purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such persons status as such, whether or not
the corporation would have the power to indemnify such person against such liability under the
provisions of the DGCL.
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8.10 SURVIVAL
The rights to indemnification and advancement of expenses conferred by this Article VIII shall
continue as to a person who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such a person.
8.11 EFFECT OF REPEAL OR MODIFICATION
Any amendment, alteration or repeal of this Article VIII shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission occurring prior to such
amendment, alteration or repeal.
8.12 CERTAIN DEFINITIONS
For purposes of this Article VIII, references to the corporation shall include, in addition
to the resulting corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, employees or agents, so
that any person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this Article VIII with respect
to the resulting or surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued. For purposes of this Article VIII,
references to other enterprises shall include employee benefit plans; references to fines shall
include any excise taxes assessed on a person with respect to an employee benefit plan; and
references to serving at the request of the corporation shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner not opposed to the best interests of the
corporation as referred to in this Article VIII.
ARTICLE IX GENERAL MATTERS
9.1 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
Except as otherwise provided by law, the certificate of incorporation or these bylaws, the
board of directors may authorize any officer or officers, or agent or agents, to enter into any
contract or execute any document or instrument in the name of and on behalf of the corporation;
such authority may be general or confined to specific instances. Unless so authorized or ratified
by the board of directors or within the agency power of an officer, no officer, agent or employee
shall have any power or authority to bind the corporation by any contract or engagement or to
pledge its credit or to render it liable for any purpose or for any amount.
9.2 FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the board of directors and
may be changed by the board of directors.
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9.3 SEAL
The corporation may adopt a corporate seal, which shall be adopted and which may be altered by
the board of directors. The corporation may use the corporate seal by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
9.4 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of construction, and
definitions in the DGCL shall govern the construction of these bylaws. Without limiting the
generality of this provision, the singular number includes the plural, the plural number includes
the singular, and the term person includes both an entity and a natural person.
ARTICLE X AMENDMENTS
These bylaws may be adopted, amended or repealed by the stockholders entitled to vote;
provided, however, that the affirmative vote of the holders of at least 66 2/3% of the total voting
power of outstanding voting securities, voting together as a single class, shall be required for
the stockholders of the corporation to alter, amend or repeal, or adopt any bylaw inconsistent
with, the following provisions of these bylaws: Article II, Sections 3.1, 3.2, 3.4 and 3.11 of
Article III, Article VIII and this Article X (including, without limitation, any such Article or
Section as renumbered as a result of any amendment, alteration, change, repeal, or adoption of any
other Bylaw). The board of directors shall also have the power to adopt, amend or repeal bylaws;
provided, however, that a bylaw amendment adopted by stockholders which specifies the votes that
shall be necessary for the election of directors shall not be further amended or repealed by the
board of directors.
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ENDOCYTE, INC.
CERTIFICATE OF AMENDMENT OF BYLAWS
The undersigned hereby certifies that he or she is the duly elected, qualified, and acting
Secretary or Assistant Secretary of ENDOCYTE, INC., a Delaware corporation and that the foregoing
bylaws, comprising 25 pages, were amended and restated on November 10, 2010 by the corporations
board of directors.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand this ___ day of
, 2010.
Secretary |