Attached files
file | filename |
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S-1 - FORM S-1 - ATOSSA THERAPEUTICS, INC. | v301800_s1.htm |
EX-3.1 - EXHIBIT 3.1 - ATOSSA THERAPEUTICS, INC. | v301800_ex3-1.htm |
EX-10.1 - EXHIBIT 10.1 - ATOSSA THERAPEUTICS, INC. | v300180_ex10-1.htm |
EX-10.3 - EXHIBIT 10.3 - ATOSSA THERAPEUTICS, INC. | v301800_ex10-3.htm |
EX-23.1 - EXHIBIT 23.1 - ATOSSA THERAPEUTICS, INC. | v301800_ex23-1.htm |
EX-10.2 - EXHIBIT 10.2 - ATOSSA THERAPEUTICS, INC. | v300180_ex10-2.htm |
EX-10.4 - EXHIBIT 10.4 - ATOSSA THERAPEUTICS, INC. | v301800_ex10-4.htm |
EX-10.6 - EXHIBIT 10.6 - ATOSSA THERAPEUTICS, INC. | v301800_ex10-6.htm |
EX-10.16 - EXHIBIT 10.16 - ATOSSA THERAPEUTICS, INC. | v301800_ex10-16.htm |
EX-10.11 - EXHIBIT 10.11 - ATOSSA THERAPEUTICS, INC. | v301800_ex10-11.htm |
EX-10.10 - EXHIBIT 10.10 - ATOSSA THERAPEUTICS, INC. | v301800_ex10-10.htm |
EX-10.15 - EXHIBIT 10.15 - ATOSSA THERAPEUTICS, INC. | v301800_ex10-15.htm |
EX-10.17 - EXHIBIT 10.17 - ATOSSA THERAPEUTICS, INC. | v301800_ex10-17.htm |
Exhibit
3.3
AMENDED
AND RESTATED
BYLAWS
OF
ATOSSA
GENETICS INC.
Adopted
June 10, 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
|
2
|
|
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
|
5
|
|
1.12
|
List
of Stockholders Entitled to Vote
|
5
|
|
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
|
6
|
|
2.5
|
Place
of Meetings; Meetings by Telephone
|
6
|
|
2.6
|
Conduct
of Business
|
7
|
|
2.7
|
Regular
Meetings
|
7
|
|
2.8
|
Special
Meetings; Notice
|
7
|
|
2.9
|
Quorum;
Voting
|
7
|
|
2.10
|
Board
Action by Written Consent Without a Meeting
|
8
|
|
2.11
|
Fees
and Compensation of Directors
|
8
|
|
2.12
|
Removal
of Directors
|
8
|
|
ARTICLE III — COMMITTEES |
8
|
||
3.1
|
Committees
of Directors
|
8
|
|
3.2
|
Committee
Minutes
|
9
|
|
3.3
|
Meetings
and Actions of Committees
|
9
|
|
3.4
|
Subcommittees
|
9
|
|
ARTICLE IV — OFFICERS |
10
|
||
4.1
|
Officers
|
10
|
|
4.2
|
Appointment
of Officers
|
10
|
|
4.3
|
Subordinate
Officers
|
10
|
|
4.4
|
Removal
and Resignation of Officers
|
10
|
|
4.5
|
Vacancies
in Offices
|
10
|
|
4.6
|
Representation
of Shares of Other Corporations
|
10
|
|
4.7
|
Authority
and Duties of Officers
|
11
|
|
ARTICLE V — INDEMNIFICATION |
11
|
||
5.1
|
Indemnification
of Directors and Officers in Third Party Proceedings
|
11
|
-i-
TABLE
OF CONTENTS
(Continued)
Page
5.2
|
Indemnification
of Directors and Officers in Actions by or in the Right of the
Company
|
11
|
|
5.3
|
Successful
Defense
|
11
|
|
5.4
|
Indemnification
of Others
|
12
|
|
5.5
|
Advanced
Payment of Expenses
|
12
|
|
5.6
|
Limitation
on Indemnification
|
12
|
|
5.7
|
Determination;
Claim
|
13
|
|
5.8
|
Non-Exclusivity
of Rights
|
13
|
|
5.9
|
Insurance
|
13
|
|
5.10
|
Survival
|
13
|
|
5.11
|
Effect
of Repeal or Modification
|
13
|
|
5.12
|
Certain
Definitions
|
14
|
|
ARTICLE VI — STOCK |
14
|
||
6.1
|
Stock
Certificates; Partly Paid Shares
|
14
|
|
6.2
|
Special
Designation on Certificates
|
14
|
|
6.3
|
Lost
Certificates
|
15
|
|
6.4
|
Dividends
|
15
|
|
6.5
|
Stock
Transfer Agreements
|
15
|
|
6.6
|
Registered
Stockholders
|
15
|
|
6.7
|
Transfers
|
16
|
|
ARTICLE VII — MANNER OF GIVING NOTICE AND WAIVER |
16
|
||
7.1
|
Notice
of Stockholder Meetings
|
16
|
|
7.2
|
Notice
by Electronic Transmission
|
16
|
|
7.3
|
Notice
to Stockholders Sharing an Address
|
17
|
|
7.4
|
Notice
to Person with Whom Communication is Unlawful
|
17
|
|
7.5
|
Waiver
of Notice
|
17
|
|
ARTICLE VIII — GENERAL MATTERS |
18
|
||
8.1
|
Fiscal
Year
|
18
|
|
8.2
|
Seal
|
18
|
|
8.3
|
Annual
Report
|
18
|
|
8.4
|
Construction;
Definitions
|
18
|
|
ARTICLE IX — AMENDMENTS |
18
|
-ii-
BYLAWS
ARTICLE I
— MEETINGS OF STOCKHOLDERS
1.1 Place of Meetings.
Meetings of stockholders of Atossa Genetics Inc. (the “Company”) shall be held at any
place, within or outside the State of Delaware, determined by the Company’s
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 Company’s 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 Company’s
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 Company’s 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 director’s 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
director’s successor is elected and qualified or until such director’s 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 directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become
effective.
Unless
otherwise provided in the certificate of incorporation or these
bylaws:
(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 director’s successor is elected
and qualified, or until such director’s 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 director’s address, telephone number, facsimile number
or electronic mail address, as the case may be, as shown on the Company’s
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 Company’s 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 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 director’s 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 person’s 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
person’s 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 such person or persons 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 the person to repay such amounts if it shall
ultimately be determined that the person is not entitled to be indemnified 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.
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. 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 person’s
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 person’s 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 owner’s 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 Company’s capital stock. Dividends may be paid in cash, in property, or
in shares of the Company’s 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
stockholder’s address as it appears on the Company’s 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 Company’s 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.