Attached files
Exhibit 3.2
BYLAWS OF
CLOVIS ONCOLOGY, INC.
Adopted April 20, 2009
TABLE OF CONTENTS
Page | ||||
ARTICLE I MEETINGS OF STOCKHOLDERS |
1 | |||
1.1 Place of Meetings |
1 | |||
1.2 Annual Meeting |
1 | |||
1.3 Special Meeting |
1 | |||
1.4 Notice of Stockholders Meetings |
1 | |||
1.5 Quorum |
2 | |||
1.6 Adjourned Meeting; Notice |
2 | |||
1.7 Conduct of Business |
2 | |||
1.8 Voting |
2 | |||
1.9 Stockholder Action by Written Consent Without a Meeting |
3 | |||
1.10 Record Date for Stockholder Notice; Voting; Giving Consents |
4 | |||
1.11 Proxies |
4 | |||
1.12 List of Stockholders Entitled to Vote |
4 | |||
ARTICLE II DIRECTORS |
5 | |||
2.1 Powers |
5 | |||
2.2 Number of Directors |
5 | |||
2.3 Election, Qualification and Term of Office of Directors |
5 | |||
2.4 Resignation and Vacancies |
5 | |||
2.5 Place of Meetings; Meetings by Telephone |
6 | |||
2.6 Conduct of Business |
6 | |||
2.7 Regular Meetings |
6 | |||
2.8 Special Meetings; Notice |
6 | |||
2.9 Quorum; Voting |
7 | |||
2.10 Board Action by Written Consent Without a Meeting |
7 | |||
2.11 Fees and Compensation of Directors |
7 | |||
2.12 Removal of Directors |
7 | |||
ARTICLE III COMMITTEES |
8 | |||
3.1 Committees of Directors |
8 | |||
3.2 Committee Minutes |
8 | |||
3.3 Meetings and Actions of Committees |
8 | |||
3.4 Subcommittees |
9 | |||
ARTICLE IV OFFICERS |
9 | |||
4.1 Officers |
9 | |||
4.2 Appointment of Officers |
9 | |||
4.3 Subordinate Officers |
9 | |||
4.4 Removal and Resignation of Officers |
9 | |||
4.5 Vacancies in Offices |
9 | |||
4.6 Representation of Shares of Other Corporations |
9 | |||
4.7 Authority and Duties of Officers |
9 | |||
ARTICLE V INDEMNIFICATION |
10 | |||
5.1 Indemnification of Directors and Officers in Third Party Proceedings |
10 |
Page | ||||
5.2 Indemnification of Directors and Officers in Actions by or in the Right of the Company |
10 | |||
5.3 Successful Defense |
10 | |||
5.4 Indemnification of Others |
10 | |||
5.5 Advanced Payment of Expenses |
10 | |||
5.6 Limitation on Indemnification |
11 | |||
5.7 Determination; Claim |
12 | |||
5.8 Non-Exclusivity of Rights |
12 | |||
5.9 Insurance |
12 | |||
5.10 Survival |
12 | |||
5.11 Effect of Repeal or Modification |
12 | |||
5.12 Certain Definitions |
12 | |||
ARTICLE VI STOCK |
13 | |||
6.1 Stock Certificates; Partly Paid Shares |
13 | |||
6.2 Special Designation on Certificates |
13 | |||
6.3 Lost Certificates |
14 | |||
6.4 Dividends |
14 | |||
6.5 Stock Transfer Agreements |
14 | |||
6.6 Registered Stockholders |
14 | |||
6.7 Transfers |
14 | |||
ARTICLE VII MANNER OF GIVING NOTICE AND WAIVER |
14 | |||
7.1 Notice of Stockholder Meetings |
14 | |||
7.2 Notice by Electronic Transmission |
14 | |||
7.3 Notice to Stockholders Sharing an Address |
15 | |||
7.4 Notice to Person with Whom Communication is Unlawful |
16 | |||
7.5 Waiver of Notice |
16 | |||
ARTICLE VIII GENERAL MATTERS |
16 | |||
8.1 Fiscal Year |
16 | |||
8.2 Seal |
16 | |||
8.3 Annual Report |
16 | |||
8.4 Construction; Definitions |
16 | |||
ARTICLE IX AMENDMENTS |
16 | |||
-ii-
BYLAWS
ARTICLE I MEETINGS OF STOCKHOLDERS
1.1 Place of Meetings. Meetings of stockholders of Clovis Oncology, Inc. (the Company) shall be
held at any place, within or outside the State of Delaware, determined by the Companys board of
directors (the Board). The Board 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 Delaware General Corporation Law (the
DGCL). In the absence of any such designation or determination, stockholders meetings shall be
held at the Companys principal executive office.
1.2 Annual Meeting. An annual meeting of stockholders shall be held for the election of directors
at such date and time as may be designated by resolution of the Board from time to time. Any other
proper business may be transacted at the annual meeting. The Company shall not be required to hold
an annual meeting of stockholders, provided that (i) the stockholders are permitted to act by
written consent under the Companys certificate of incorporation and these bylaws, (ii) the
stockholders take action by written consent to elect directors and (iii) the stockholders
unanimously consent to such action or, if such consent is less than unanimous, all of 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.
1.3 Special Meeting. A special meeting of the stockholders may be called at any time by the
Board, Chairperson of the Board, Chief Executive Officer or President (in the absence of a Chief
Executive Officer) or by one or more stockholders holding shares in the aggregate entitled to cast
not less than 10% of the votes at that meeting.
If any person(s) other than the Board calls a special meeting, the request shall:
(i) be in writing;
(ii) specify the time of such meeting and the general nature of the business proposed to be
transacted; and
(iii) be delivered personally or sent by registered mail or by facsimile transmission to the
Chairperson of the Board, the Chief Executive Officer, the President (in the absence of a Chief
Executive Officer) or the Secretary of the Company.
The officer(s) receiving the request shall cause notice to be promptly given to the
stockholders entitled to vote at such meeting, in accordance with these bylaws, that a meeting will
be held at the time requested by the person or persons calling the meeting. No business may be
transacted at such special meeting other than the business specified in such notice to
stockholders. Nothing contained in this paragraph of this section 1.3 shall be construed as
limiting, fixing, or affecting the time when a meeting of stockholders called by action of the
Board may be held.
1.4 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 communication, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such 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.
1.5 Quorum. Except as otherwise provided by law, the certificate of incorporation or these
bylaws, at each meeting of stockholders the presence in person or by proxy of the holders of shares
of stock having a majority of the votes which could be cast by the holders of all outstanding
shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a
quorum. 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, however, such 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 the power to adjourn the meeting
from time to time, in the manner provided in section 1.6, until a quorum is present or represented.
1.6 Adjourned Meeting; Notice. Any meeting of stockholders, annual or special, may adjourn from
time to time to reconvene at the same or some other place, and 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 Company may transact any business which might have been transacted at the original
meeting. If the adjournment is for more than 30 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.
1.7 Conduct of Business. Meetings of stockholders shall be presided over by the Chairperson of
the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in the
absence of the foregoing persons by the Chief Executive Officer, or in the absence of the foregoing
persons by the President, or in the absence of the foregoing persons by a Vice President, or in the
absence of the foregoing persons by a chairperson designated by the Board, or in the absence of
such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of
the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act
as secretary of the meeting. 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.
1.8 Voting. The stockholders entitled to vote at any meeting of stockholders shall be determined
in accordance with the provisions of section 1.10 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, each stockholder
entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of
capital stock held by such stockholder which has voting power upon the matter in question. Voting
at meetings of stockholders need not be by written ballot and, unless otherwise required by law,
need not be conducted by inspectors of election unless so determined by the holders of shares of
stock having a majority of the votes which could be cast by the holders of all outstanding shares
of stock entitled to vote thereon which are present in
person or by proxy at such meeting. If authorized by the Board, such requirement of a written
ballot shall be satisfied by a ballot submitted by electronic transmission (as defined in section
7.2 of these bylaws), provided that any 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 stockholder or proxy holder.
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.
1.9
Stockholder Action by Written Consent Without a Meeting. Unless otherwise provided in the
certificate of incorporation, any action required by the DGCL to be taken at any annual or special
meeting of stockholders of a 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.
An electronic transmission (as defined in section 7.2) consenting to an action to be taken and
transmitted by a stockholder or proxy holder, or by a person or persons authorized to act for a
stockholder or proxy holder, shall be deemed to be written, signed and dated for purposes of this
section, provided that any such electronic transmission sets forth or is delivered with information
from which the Company can determine (i) that the electronic transmission was transmitted by the
stockholder or proxy holder or by a person or persons authorized to act for the stockholder or
proxy holder and (ii) the date on which such stockholder or proxy holder or authorized person or
persons transmitted such electronic transmission.
In the event that the Board shall have instructed the officers of the Company to solicit the
vote or written consent of the stockholders of the Company, an electronic transmission of a
stockholder written consent given pursuant to such solicitation may be delivered to the Secretary
or the President of the Company or to a person designated by the Secretary or the President. The
Secretary or the President of the Company or a designee of the Secretary or the President shall
cause any such written consent by electronic transmission to be reproduced in paper form and
inserted into the corporate records.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in writing 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 holders to take the action were delivered to the Company as provided in Section 228 of the DGCL.
In the event that the action which is consented to is such as would have required the filing of a
certificate under any provision of the DGCL, if such action had been voted on by stockholders at a
meeting thereof, the certificate filed under such provision shall state, in lieu of any statement
required by such provision concerning any vote of stockholders, that written consent has been given
in accordance with Section 228 of the DGCL.
1.10
Record Date for Stockholder Notice; Voting; Giving Consents. In order that the Company may
determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled 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 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 and which record date:
(i) in the case of determination of stockholders entitled to notice of or to vote at any
meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be
more than sixty nor less than ten days before the date of such meeting;
(ii) in the case of determination of stockholders entitled to express consent to corporate
action in writing without a meeting, shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board; and
(iii) in the case of determination of stockholders for any other action, shall not be more than
60 days prior to such other action.
If no record date is fixed by the Board:
(i) the record date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day next preceding the day on
which the meeting is held;
(ii) the record date for determining stockholders entitled to express consent to corporate
action in writing without a meeting when no prior action of the Board is required by law, shall be
the first date on which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Company in accordance with applicable law, or, if prior action by the
Board is required by law, shall be at the close of business on the day on which the Board adopts
the resolution taking such prior action; and
(iii) the record date for determining stockholders for any other purpose shall be at the close
of business on the day on which the Board adopts the resolution relating thereto.
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 that the Board may fix a new
record date for the adjourned meeting.
1.11
Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting 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.
1.12
List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger of the
Company shall prepare and make, at least ten days before every meeting of stockholders, a complete
list
of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and
showing the address of each stockholder and the number of shares registered in the name of each
stockholder. The Company 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 ten 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 Companys principal place of business. In the event that the Company
determines to make the list available on an electronic network, the Company may take reasonable
steps to ensure that such information is available only to stockholders of the Company. 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.
ARTICLE II DIRECTORS
2.1
Powers. The business and affairs of the Company shall be managed by or under the direction of
the Board, except as may be otherwise provided in the DGCL or the certificate of incorporation.
2.2
Number of Directors. The Board 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 by resolution of the Board. No reduction of the
authorized number of directors shall have the effect of removing any director before that
directors term of office expires.
2.3
Election, Qualification and Term of Office of Directors. Except as provided in section 2.4 of
these bylaws, and subject to sections 1.2 and 1.9 of these bylaws, directors shall be elected at
each annual meeting of stockholders. 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. Each director shall hold office until such directors
successor is elected and qualified or until such directors earlier death, resignation or removal.
2.4
Resignation and Vacancies. Any director may resign at any time upon notice given in writing
or by electronic transmission to the Company. A resignation is effective when the resignation is
delivered unless the resignation specifies a later effective date or an effective date determined
upon the happening of an event or events. A resignation 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, effective at a future date, a majority of the
remaining directors 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:
(i) 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
may be filled by a majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever the holders of any class or classes of stock or series thereof are entitled to
elect one or more directors by the provisions of the certificate of incorporation, vacancies and
newly created directorships of such class or classes or series may be filled by a majority of the
directors elected by such class or classes or series thereof then in office, or by a sole remaining
director so elected.
If at any time, by reason of death or resignation or other cause, the Company should have no
directors in office, then any officer or any stockholder or an executor, administrator, trustee or
guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person or
estate of a stockholder, may call a special meeting of stockholders in accordance with the
provisions of the certificate of incorporation or these bylaws, or may apply to the Court of
Chancery for a decree summarily ordering an election as provided in Section 211 of the DGCL.
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 (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.
A director elected to fill a vacancy shall be elected for the unexpired term of his or her
predecessor in office and until such directors successor is elected and qualified, or until such
directors earlier death, resignation or removal.
2.5
Place of Meetings; Meetings by Telephone. The Board 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, or any committee designated by the Board, may participate in a meeting of the Board, 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.
2.6
Conduct of Business. Meetings of the Board shall be presided over by the Chairperson of the
Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in the
absence of the foregoing persons by a chairperson designated by the Board, or in the absence of
such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of
the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act
as secretary of the meeting.
2.7
Regular Meetings. Regular meetings of the Board may be held without notice at such time and
at such place as shall from time to time be determined by the Board.
2.8
Special Meetings; Notice. Special meetings of the Board for any purpose or purposes may be
called at any time by the Chairperson of the Board, the Chief Executive Officer, the President, the
Secretary or any two directors.
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 Companys 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 Companys principal executive office) nor the
purpose of the meeting.
2.9
Quorum; Voting. At all meetings of the Board, 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, 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, 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.
2.10
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, or of any committee thereof, may be taken without a meeting if all members of
the Board or committee, as the case may be, consent thereto in writing or by electronic
transmission and the writing or writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board 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.
2.11
Fees and Compensation of Directors. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the Board shall have the authority to fix the compensation of
directors.
2.12
Removal of Directors. Unless otherwise restricted by statute, the certificate of
incorporation or these bylaws, any director or the entire Board may be removed, with or without
cause, by the holders of a majority of the shares then entitled to vote at an election of
directors.
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 III COMMITTEES
3.1 Committees of Directors. The Board may designate one or more committees, each committee to
consist of one or more of the directors of the Company. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
such member or members constitute a quorum, may unanimously appoint another member of the Board 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 or in these bylaws, shall have and may exercise
all the powers and authority of the Board in the management of the business and affairs of the
Company, and may authorize the seal of the Company 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 Company.
3.2
Committee Minutes. Each committee shall keep regular minutes of its meetings and report the
same to the Board when required.
3.3
Meetings and Actions of Committees. Meetings and actions of committees shall be governed by,
and held and taken in accordance with, the provisions of:
(i) section
2.5 (Place of Meetings; Meetings by Telephone);
(ii) section 2.7 (Regular Meetings);
(iii) section 2.8 (Special Meetings; Notice);
(iv) section 2.9 (Quorum; Voting);
(v) section 2.10 (Board Action by Written Consent 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 and its members. However:
(i) the time of regular meetings of committees may be determined either by resolution of the
Board or by resolution of the committee;
(ii) special meetings of committees may also be called by resolution of the Board; 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 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.
3.4
Subcommittees. Unless otherwise provided in the certificate of incorporation, these bylaws or
the resolutions of the Board 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 IV OFFICERS
4.1
Officers. The officers of the Company shall be a President and a Secretary. The Company may
also have, at the discretion of the Board, a Chairperson of the Board, a Vice Chairperson of the
Board, a Chief Executive Officer, one or more Vice Presidents, a Chief Financial Officer, a
Treasurer, 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.
4.2
Appointment of Officers. The Board shall appoint the officers of the Company, except such
officers as may be appointed in accordance with the provisions of section 4.3 of these bylaws.
4.3
Subordinate Officers. The Board 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 Company 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 may from time to time determine.
4.4
Removal and Resignation of Officers. Any officer may be removed, either with or without
cause, by an affirmative vote of the majority of the Board at any regular or special meeting of the
Board or, except in the case of an officer chosen by the Board, by any officer upon whom such power
of removal may be conferred by the Board.
Any officer may resign at any time by giving written notice to the Company. 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 Company under any contract to which the officer is a party.
4.5
Vacancies in Offices. Any vacancy occurring in any office of the Company shall be filled by
the Board or as provided in section 4.3.
4.6
Representation of Shares of Other Corporations. Unless otherwise directed by the Board, the
President or any other person authorized by the Board or the President is authorized to vote,
represent and exercise on behalf of the Company all rights incident to any and all shares of any
other corporation or corporations standing in the name of the Company. 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.
4.7
Authority and Duties of Officers. Except as otherwise provided in these bylaws, the officers
of the Company shall have such powers and duties in the management of the Company as may be
designated from time to time by the Board and, to the extent not so provided, as generally pertain
to their respective offices, subject to the control of the Board.
ARTICLE V INDEMNIFICATION
5.1
Indemnification of Directors and Officers in Third Party Proceedings. Subject to the other
provisions of this Article V, the Company 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 Company) by reason of the fact that such person is or was a director or officer of the
Company, or is or was a director or officer of the Company serving at the request of the Company 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 Company, 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 Company, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that such persons conduct was unlawful.
5.2
Indemnification of Directors and Officers in Actions by or in the Right of the Company.
Subject to the other provisions of this Article V, the Company 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 Company to procure a judgment in its favor by reason of the fact that such person
is or was a director or officer of the Company, or is or was a director or officer of the Company
serving at the request of the Company 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 Company; 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 Company 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.
5.3
Successful Defense. To the extent that a present or former director or officer of the Company
has been successful on the merits or otherwise in defense of any action, suit or proceeding
described in section 5.1 or section 5.2, 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.
5.4
Indemnification of Others. Subject to the other provisions of this Article V, the Company
shall have power to indemnify its employees and agents to the extent not prohibited by the DGCL or
other applicable law. The Board shall have the power to delegate to the determination of whether
employees or agents shall be indemnified.
5.5
Advanced Payment of Expenses. Expenses (including attorneys fees) incurred by an officer or
director of the Company in defending any Proceeding shall be paid by the Company 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 such
officer or director to repay such amounts if it shall ultimately be determined that such person is
not entitled to be indemnified by the Company under this Article V 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 Company deems appropriate. The right
to advancement of expenses shall not apply to any Proceeding for which indemnity is excluded
pursuant to these bylaws, but shall apply to any Proceeding referenced in section 5.6(ii) or
5.6(iii) prior to a determination that the person is not entitled to be indemnified by the Company.
Notwithstanding the foregoing, unless otherwise determined pursuant to section 5.8, no advance
shall be made by the Company to an officer of the Company (except by reason of the fact that such
officer is or was a director of the Company, in which event this paragraph shall not apply) in any
Proceeding if a determination is reasonably and promptly made (i) by a majority vote of the
directors who are not parties to such Proceeding, even though less than a quorum, or (ii) by a
committee of such directors designated by majority vote of such directors, even though less than a
quorum, or (iii) if there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, that facts known to the decision-making party at the time such
determination is made demonstrate clearly and convincingly that such person acted in bad faith or
in a manner that such person did not believe to be in or not opposed to the best interests of the
Company.
5.6
Limitation on Indemnification. Subject to the requirements in section 5.3 and the DGCL, the
Company shall not be obligated to indemnify any person pursuant to this Article V 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 Securities
Exchange Act of 1934, as amended, 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 Company 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 Company, as required in each case under the Securities Exchange Act of
1934, as amended (including any such reimbursements that arise from an accounting restatement of
the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act),
or the payment to the Company of profits arising from the purchase and sale by such 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, including any Proceeding (or any part of any Proceeding)
initiated by such person against the Company or its directors, officers, employees, agents or other
indemnitees, unless (a) the Board authorized the Proceeding (or the relevant part of the
Proceeding) prior to its initiation, (b) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable law, (c) otherwise
required to be made under section 5.7 or (d) otherwise required by applicable law; or
(v) if prohibited by applicable law.
5.7
Determination; Claim. If a claim for indemnification or advancement of expenses under this
Article V is not paid by the Company or on its behalf within 90 days after receipt by the Company
of a 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. To the extent not prohibited by law, the Company shall indemnify such person against all
expenses actually and reasonably incurred by such person in connection with any action for
indemnification or advancement of expenses from the Company under this Article V, to the extent
such person is successful in such action, and, if requested by such person, shall advance such
expenses to such person, subject to the provisions of Section 5.5. In any such suit, the Company
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.
5.8
Non-Exclusivity of Rights. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article V 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 Company 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.
5.9
Insurance. The Company may purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Company, or is or was serving at the request of
the Company 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 Company would have the power to indemnify such person against such liability under the
provisions of the DGCL.
5.10
Survival. The rights to indemnification and advancement of expenses conferred by this Article
V 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.
5.11
Effect of Repeal or Modification. Any amendment, alteration or repeal of this Article V 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.
5.12
Certain Definitions. For purposes of this Article V, references to the Company 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 V 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 V,
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 Company shall include any service as a director,
officer, employee or agent of the Company 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 Company as referred to in this Article
V.
ARTICLE VI STOCK
6.1
Stock Certificates; Partly Paid Shares. The shares of the Company shall be represented by
certificates, provided that the Board 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
Company. Every holder of stock represented by certificates shall be entitled to have a certificate
signed by, or in the name of the Company by the Chairperson of the Board or Vice-Chairperson of the
Board, or the President or a Vice-President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Company 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 Company with the same effect as if such person were
such officer, transfer agent or registrar at the date of issue. The Company shall not have power to
issue a certificate in bearer form.
The Company 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
Company 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 Company 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 Company 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 Company shall issue to represent such class or series of stock; provided 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 Company shall issue to represent such
class or series of stock, a statement that the Company 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 Company 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 218(a) of the DGCL or with
respect to this section 6.2 a statement that the Company 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 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
Company and cancelled at the same time. The Company 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 Company may require the owner of the lost, stolen or
destroyed certificate, or such owners legal representative, to give the Company 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, subject to any restrictions contained in the certificate of
incorporation or applicable law, may declare and pay dividends upon the shares of the Companys
capital stock. Dividends may be paid in cash, in property, or in shares of the Companys capital
stock, subject to the provisions of the certificate of incorporation.
The Board may set apart out of any of the funds of the Company available for dividends a
reserve or reserves for any proper purpose and may abolish any such reserve.
6.5
Stock Transfer Agreements. The Company 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 Company to
restrict the transfer of shares of stock of the Company of any one or more classes owned by such
stockholders in any manner not prohibited by the DGCL.
6.6
Registered Stockholders. The Company:
(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.
6.7
Transfers. Transfers of record of shares of stock of the Company 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.
ARTICLE VII MANNER OF GIVING NOTICE AND WAIVER
7.1
Notice of Stockholder 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 Companys records. An affidavit of the Secretary or an
Assistant Secretary of the Company or of the transfer agent or other agent of the Company 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 Company 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 Company. Any such consent shall be deemed
revoked if:
(i) the Company is unable to deliver by electronic transmission two consecutive notices given
by the Company in accordance with such consent; and
(ii) such inability becomes known to the Secretary or an Assistant Secretary of the Company 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;
(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 Company 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.
Notice by a form of electronic transmission shall not apply to Sections 164, 296, 311, 312 or
324 of the DGCL.
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 Company 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
Company. Any stockholder who fails to object in writing to the Company, within 60 days of having
been given written notice by the Company 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 Company 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 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 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 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 GENERAL MATTERS
8.1
Fiscal Year. The fiscal year of the Company shall be fixed by resolution of the Board and may
be changed by the Board.
8.2
Seal. The Company may adopt a corporate seal, which shall be in such form as may be approved
from time to time by the Board. The Company may use the corporate seal by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
8.3
Annual Report. The Company shall cause an annual report to be sent to the stockholders of the
Company to the extent required by applicable law. If and so long as there are fewer than 100
holders of record of the Companys shares, the requirement of sending an annual report to the
stockholders of the Company is expressly waived (to the extent permitted under applicable law).
8.4
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 a corporation and a
natural person.
ARTICLE IX AMENDMENTS
These bylaws may be adopted, amended or repealed by the stockholders entitled to vote.
However, the Company may, in its certificate of incorporation, confer the power to adopt, amend or
repeal bylaws upon the directors. The fact that such power has been so conferred upon the directors
shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal
bylaws.
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.