Attached files
file | filename |
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S-1/A - FORM S-1/A - Kior Inc | h80686a1sv1za.htm |
EX-3.4 - EX-3.4 - Kior Inc | h80686a1exv3w4.htm |
EX-3.1 - EX-3.1 - Kior Inc | h80686a1exv3w1.htm |
EX-4.2 - EX-4.2 - Kior Inc | h80686a1exv4w2.htm |
EX-3.3 - EX-3.3 - Kior Inc | h80686a1exv3w3.htm |
EX-4.9 - EX-4.9 - Kior Inc | h80686a1exv4w9.htm |
EX-1.1 - EX-1 - Kior Inc | h80686a1exv1w1.htm |
EX-4.7 - EX-4.7 - Kior Inc | h80686a1exv4w7.htm |
EX-4.8 - EX-4.8 - Kior Inc | h80686a1exv4w8.htm |
EX-23.1 - EX-23.1 - Kior Inc | h80686a1exv23w1.htm |
EX-10.9 - EX-10.9 - Kior Inc | h80686a1exv10w9.htm |
EX-21.1 - EX-21.1 - Kior Inc | h80686a1exv21w1.htm |
EX-4.12 - EX-4.12 - Kior Inc | h80686a1exv4w12.htm |
EX-10.7 - EX-10.7 - Kior Inc | h80686a1exv10w7.htm |
EX-4.14 - EX-4.14 - Kior Inc | h80686a1exv4w14.htm |
EX-4.11 - EX-4.11 - Kior Inc | h80686a1exv4w11.htm |
EX-10.8 - EX-10.8 - Kior Inc | h80686a1exv10w8.htm |
EX-4.13 - EX-4.13 - Kior Inc | h80686a1exv4w13.htm |
EX-4.10 - EX-4.10 - Kior Inc | h80686a1exv4w10.htm |
EX-10.10 - EX-10.10 - Kior Inc | h80686a1exv10w10.htm |
Exhibit 3.2
AMENDED AND RESTATED BYLAWS OF
KIOR, INC.,
a Delaware corporation
KIOR, INC.,
a Delaware corporation
ARTICLE I.
OFFICES
OFFICES
Section 1. Registered Office. The registered office shall be at the office of
Corporation Trust Center, in the City of Wilmington, New Castle County, State of Delaware.
Section 2. Other Offices. 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.
MEETINGS OF STOCKHOLDERS
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. An annual meeting 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 on an annual basis 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 a duly
executed waiver of notice thereof. Any other proper business may be transacted at the annual
meeting.
Section 2. Notice of Annual 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.
Section 3. Voting List. The officer who has charge of the stock ledger of the
corporation shall prepare and make, or cause a third party to 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.
Section 4. Special Meetings. Special meetings of the stockholders of this
corporation, for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, shall be called by the President or Secretary at the request in
writing of a majority of the members of the Board of Directors, the President or holders or 10% of
all outstanding stock of this corporation then entitled to vote, and may not be called absent such
a request. Such request shall state the purpose or purposes of the proposed meeting.
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Section 5. Notice of Special Meetings. As soon as reasonably practicable after
receipt of a request as provided in Section 4 of this Article II, written notice of a special
meeting, stating the place, date (which shall be not less than ten nor more than sixty days from
the date of the notice) and hour of the special meeting and the purpose or purposes for which the
special meeting is called, shall be given to each stockholder entitled to vote at such special
meeting.
Section 6. Scope of Business at Special Meeting. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 7. Quorum. The holders of a majority of the 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, except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the chairman of the meeting or 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 as provided in Section
5 of this Article II.
Section 8. Qualifications to Vote. The stockholders of record on the books of the
corporation at the close of business on the record date as determined by the Board of Directors and
only such stockholders shall be entitled to vote at any meeting of stockholders or any adjournment
thereof.
Section 9. Record Date. The Board of Directors may fix a record date for the
determination of the stockholders entitled to notice of or to vote at any stockholders meeting and
at any adjournment thereof, or to express consent to corporate action in writing without a meeting,
or 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 record date shall not be more than sixty nor less than ten days
before the date of such meeting, and not more than sixty days prior to any other action. If no
record date is fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held. 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.
Section 10. Action at Meetings. 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 applicable law or of the Certificate of Incorporation, a
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different vote is required, in which case such express provision shall govern and control the
decision of such question.
Section 11. Voting and Proxies. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the 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. Each proxy shall be revocable unless expressly provided therein to
be irrevocable and unless it is coupled with an interest sufficient in law to support an
irrevocable power.
Section 12. Action by Stockholders Without a Meeting. 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 or consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the corporation by delivery to its
registered office in the State of Delaware (by hand or by certified or registered mail, return
receipt requested), to its principal place of business, or to an officer or agent of the
corporation having custody of the book in which proceedings of meetings of stockholders are
recorded provided, however, that action by written consent to elect directors, if less than
unanimous, shall be in lieu of holding an annual meeting only if all the directorships to which
directors could be elected at an annual meeting held at the effective time of such action are
vacant and are filled by such action. Prompt notice of the taking of corporate action without a
meeting by less than unanimous written consent shall be given to those stockholders who have not
consented in writing and who, if the action had been taken at a meeting, would have been entitled
to notice of the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of stockholders to take the action were delivered to the
corporation by delivery to its registered office in the State of Delaware (by hand or by certified
or registered mail, return receipt requested), to its principal place of business, or to an officer
or agent of the corporation having custody of the book in which proceedings or meetings of
stockholders are recorded.
ARTICLE III.
DIRECTORS
DIRECTORS
Section 1. Powers. 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 applicable law or by the Certificate of Incorporation
or by these Bylaws directed or required to be exercised or done by the stockholders.
Section 2. Number; Election; Tenure and Qualification. The number of directors which
shall constitute the whole board shall be fixed from time to time by resolution of the Board of
Directors or by the Stockholders at an annual meeting of the Stockholders (unless the directors are
elected by written consent in lieu of an annual meeting as provided in Article II,
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Section 12). With the exception of the first Board of Directors, which shall be elected by the
incorporator, and except as provided in the corporations Certificate of Incorporation or in
Section 3 of this Article III, the directors shall be elected at the annual meeting of the
stockholders by a plurality vote of the shares represented in person or by proxy and each director
elected shall hold office until his successor is elected and qualified unless he shall resign,
become disqualified, disabled, or otherwise removed. Directors need not be stockholders.
Section 3. Vacancies and Newly Created Directorships. Unless otherwise provided in
the Certificate of Incorporation, 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. The directors so chosen shall
serve 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 applicable law. 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 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.
Section 4. Location of Meetings. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of Delaware.
Section 5. Meeting of Newly Elected Board of Directors. The first meeting of each
newly elected Board of Directors shall be held immediately following the 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 held at such time, 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.
Section 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; provided that any director who is absent when such a determination is made shall be
given notice of such location.
Section 7. Special Meetings. Special meetings of the Board of Directors may be called
by the President on, (a) in the event directors are required to attend such meeting in person, five
business days notice and (b) in all other cases, two days notice, in each case to each director
by mail, overnight courier service or facsimile; special meetings shall be called by the President
or Secretary in a like manner and on like notice on the written request of any director. Notice
may be waived in accordance with Section 229 of the General Corporation Law of the State of
Delaware. Each notice of special meetings delivered pursuant to the foregoing shall contain a
general description of the matters intended to be discussed at such meeting.
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Section 8. Quorum and Action at Meetings. At all meetings of the Board of Directors,
a majority of the directors then in office shall constitute a quorum for the transaction of
business, 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.
Section 9. Action 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 a meeting, if all members
of the Board of Directors or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 10. Telephonic Meeting. 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.
Section 11. Committees. 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 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.
Section 12. Committee Authority. 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 (a) approving, adopting or recommending
to the stockholders, any action or matter expressly required by the General Corporation Law of the
State of Delaware to be submitted to stockholders for approval, or (b) adopting, amending or
repealing any Bylaw of the corporation. 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.
Section 13. Committee Minutes. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required to do so by the Board of
Directors.
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Section 14. Directors 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.
Section 15. Resignation. Any director or officer of the corporation may resign at any
time. Each such resignation shall be made in writing and shall take effect at the time specified
therein, or, if no time is specified, at the time of its receipt by either the Board of Directors,
the President or the Secretary. The acceptance of a resignation shall not be necessary to make it
effective unless expressly so provided in the resignation.
Section 16. Removal. Unless otherwise restricted by the Certificate of Incorporation,
these Bylaws or applicable 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
NOTICES
Section 1. Notice to Directors and Stockholders. 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.
An affidavit of the Secretary or an Assistant Secretary or of the transfer 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. Notice to directors may also be given by telephone, facsimile or
telegram (with confirmation of receipt).
Section 2. Waiver. 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. The written waiver need not specify the
business to be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened. Attendance at the meeting is
not a waiver of any right to object to the consideration of matters required by the General
Corporation Law of the State of Delaware to be included in the notice of the meeting but not so
included, if such objection is expressly made at the meeting.
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ARTICLE V.
OFFICERS
OFFICERS
Section 1. Enumeration. The officers of the corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, a Treasurer or Chief Financial Officer and
such other officers with such other titles as the Board of Directors shall determine. The Board of
Directors may elect from among its members a Chairman or Chairmen of the Board and a Vice Chairman
of the Board. The Board of Directors may also choose one or more Vice-Presidents, 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.
Section 2. Election. The Board of Directors at its first meeting after each annual
meeting of stockholders shall elect a President, a Secretary, a Treasurer and such other officers
with such other titles as the Board of Directors shall determine.
Section 3. Appointment of Other Agents. The Board of Directors may 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 of Directors.
Section 4. Compensation. The salaries of all officers of the corporation shall be
fixed by the Board of Directors or a committee thereof. The salaries of agents of the corporation
shall, unless fixed by the Board of Directors, be fixed by the President or any Vice-President of
the corporation.
Section 5. Tenure. The officers of the corporation 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 directors of the Board of
Directors. Any vacancy occurring in any office of the corporation shall be filled by the Board of
Directors.
Section 6. Chairman of the Board and Vice-Chairman of the Board. The Chairman of the
Board, if any, shall preside at all meetings of the Board of Directors and of the stockholders at
which the Chairman shall be present. The Chairman shall have and may exercise such powers as are,
from time to time, assigned to the Chairman by the Board of Directors and as may be provided by
law. In the absence of the Chairman of the Board, the Vice Chairman of the Board, if any, shall
preside at all meetings of the Board of Directors and of the stockholders at which the Vice
Chairman shall be present. The Vice Chairman shall have and may exercise such powers as are, from
time to time, assigned to such person by the Board of Directors and as may be provided by law.
Section 7. President. The President shall be the Chief Executive Officer of the
corporation unless such title is assigned to another officer of the corporation; in the absence of
a Chairman and Vice Chairman of the Board, the President shall preside as the chairman of meetings
of the stockholders and the Board of Directors; and the President 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 or any Vice President shall
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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.
Section 8. Vice-President. In the absence of the President or in the event of the
Presidents inability or refusal to act, the Vice-President, if any (or in the event there be more
than one Vice-President, the Vice-Presidents in the order designated by the Board of 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-President shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 9. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and 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 and 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 the Board of Directors or
President, under whose supervision the Secretary shall be subject. The Secretary shall have
custody of the corporate seal of the corporation and the Secretary, or an Assistant Secretary,
shall have authority to affix the same to any instrument requiring it and when so affixed, it 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 such officers signature.
Section 10. Assistant Secretary. 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) 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.
Section 11. 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, President or Chief Executive Officer, taking proper vouchers for such
disbursements, and shall render to the President, Chief Executive Officer and the Board of
Directors, at its regular meetings, or when the Board of Directors so requires, an account of all
such 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 Treasurers office and for the
restoration to the corporation, in case of the Treasurers death, resignation, retirement or
removal
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from office, of all books, papers, vouchers, money and other property of whatever kind in the
possession or under the control of the Treasurer that belongs to the corporation.
Section 12. Assistant Treasurer. The Assistant Treasurer, or if there be more than
one, the Assistant Treasurers in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election) shall, in the absence of the Treasurer or
in the event of the Treasurers inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other powers as the Board
of Directors may from time to time prescribe.
ARTICLE VI.
CAPITAL STOCK
CAPITAL STOCK
Section 1. Certificates. The shares of the corporation shall be represented by a
certificate, unless and until the Board of Directors adopts a resolution permitting shares to be
uncertificated. Certificates shall be signed by, or in the name of the corporation by, (a) the
Chairman of the Board, the Vice-Chairman of the Board, the President or a Vice-President, and (b)
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, certifying the
number of shares owned by such stockholder in the corporation. Certificates may be issued for
partly paid shares and in such case upon the face or back of the certificates issued to represent
any such partly paid shares, the total amount of the consideration to be paid therefor and the
amount paid thereon shall be specified.
Section 2. Class or Series. 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 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 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 the State of Delaware, 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) of the
Delaware Corporation Law 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.
Section 3. Signature. Any of or all of the signatures on a 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
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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.
Section 4. 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
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 such owners 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.
Section 5. Transfer of Stock. 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. Upon receipt of proper transfer instructions from the registered owner
of uncertificated shares such uncertificated shares shall be canceled and issuance of new
equivalent uncertificated shares or certificated shares shall be made to the person entitled
thereto and the transaction shall be recorded upon the books of the corporation.
Section 6. Record Date. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholder 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.
Section 7. 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, and 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
Delaware.
ARTICLE VII.
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the corporation, subject to
the applicable provisions, if any, of the Certificate of Incorporation, may be declared by the
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Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid
in cash, in property or in shares of 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 Board of 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 purposes as the Board of Directors shall think conducive to the interest of the corporation,
and the Board of Directors may modify or abolish any such reserve in the manner in which it was
created.
Section 2. 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.
Section 3. Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Seal. The Board of Directors may adopt a corporate seal having inscribed
thereon the name of the corporation, the year of its organization 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.
Section 5. Loans. The Board of Directors of this corporation may, without stockholder
approval, authorize loans to, or guaranty obligations of, or otherwise assist, including, without
limitation, the adoption of employee benefit plans under which loans and guarantees may be made,
any officer or other employee of the corporation or of its subsidiary, including any officer or
employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the
Board of Directors, such loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or without interest, and may be
unsecured, or secured in such manner as the Board of Directors shall approve, including, without
limitation, a pledge of shares of stock of the corporation.
ARTICLE VIII.
INDEMNIFICATION
INDEMNIFICATION
Section 1. Scope. The corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as that Section may be amended and
supplemented from time to time, indemnify any director, officer, employee or agent of the
corporation, against expenses (including attorneys fees), judgments, fines, amounts paid in
settlement and/or other matters referred to in or covered by that Section, by reason of the fact
that such person 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.
Section 2. Advancing Expenses. Expenses (including attorneys fees) incurred by a
present or former director or officer of the corporation in defending a civil, criminal,
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administrative or investigative action, suit or proceeding by reason of the fact that such
person 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) shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified by the corporation as authorized by relevant
provisions of the General Corporation Law of the State of Delaware; provided, however, the
corporation shall not be required to advance such expenses to a director (i) who commences any
action, suit or proceeding as a plaintiff unless such advance is specifically approved by a
majority of the Board of Directors, or (ii) who is a party to an action, suit or proceeding brought
by the corporation and approved by a majority of the Board of Directors which alleges willful
misappropriation of corporate assets by such director, disclosure of confidential information in
violation of such directors fiduciary or contractual obligations to the corporation, or any other
willful and deliberate breach in bad faith of such directors duty to the corporation or its
stockholders.
Section 3. Liability Offset. The corporations obligation to provide indemnification
under this Article VIII shall be offset to the extent the indemnified party is indemnified by any
other source including, but not limited to, any applicable insurance coverage under a policy
maintained by the corporation, the indemnified party or any other person.
Section 4. Continuing Obligation. The provisions of this Article VIII shall be deemed
to be a contract between the corporation and each director of the corporation who serves in such
capacity at any time while this bylaw is in effect, and any repeal or modification thereof shall
not affect any rights or obligations then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in
whole or in part upon any such state of facts.
Section 5. Nonexclusive. The indemnification and advancement of expenses provided for
in this Article VIII shall (i) not be deemed exclusive of any other rights to which those
indemnified may be entitled under any bylaw, agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in their official capacities and as to action in another
capacity while holding such office, (ii) continue as to a person who has ceased to be a director
and (iii) inure to the benefit of the heirs, executors and administrators of such a person.
Section 6. Other Persons. In addition to the indemnification rights of directors,
officers, employees, or agents of the corporation, the Board of Directors in its discretion shall
have the power on behalf of the corporation to indemnify any other person made a party to any
action, suit or proceeding who the corporation may indemnify under Section 145 of the General
Corporation Law of the State of Delaware.
Section 7. Definitions. The phrases and terms set forth in this Article VIII shall be
given the same meaning as the identical terms and phrases are given in Section 145 of the General
Corporation Law of the State of Delaware, as that Section may be amended and supplemented from time
to time.
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ARTICLE IX.
AMENDMENTS
AMENDMENTS
Except as otherwise provided in the Certificate of Incorporation, these Bylaws may be altered,
amended or repealed, or new Bylaws may be adopted, by the holders of a majority of the outstanding
voting shares 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.
Amended and restated by the stockholders of the Company on August 4, 2009
/s/ Andre Ditsch | ||||
Name: | Andre Ditsch | |||
Title: | Secretary | |||
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