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8-K - CURRENT REPORT - Cellular Biomedicine Group, Inc. | cbmg_8k.htm |
Exhibit 3.1
AMENDED AND RESTATED
BYLAWS OF
CELLULAR BIOMEDICINE GROUP, INC.
(a Delaware Corporation)
(adopted effective as of September 17, 2016)
These
Amended and Restated Bylaws of Cellular Biomedicine Group, Inc., a
Delaware corporation (the “Corporation”) are adopted pursuant
to Article 8 the Corporation’s existing Bylaws (the
“Original
Bylaws”) and are intended to amend, restate and
replace, in their entirety, the Original Bylaws effective as of the
date first written above.
ARTICLE 1
OFFICES
SECTION
1.1. Principal
Office. The principal offices of the Corporation shall be in
such location as the Board of Directors of the Corporation (the
“Board of
Directors”) may determine.
SECTION
1.2. Other
Offices. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION
2.1. Place of
Meeting; Chairman. All meetings of stockholders shall be
held at such place, either within or without the State of Delaware,
as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting. The Chairman of the Board
of the Corporation (the “Chairman of the Board”) or any
other person specifically designated by the Board of Directors
shall act as the Chairman for any meeting of stockholders of the
Corporation. The Chairman of the Board (or his or her designee)
shall have full authority to control the process of any stockholder
or Board of Directors meeting, including, without limitation,
determining whether any proposals or nominations were properly
brought before such meeting, establishing an agenda or order of
business for the meeting, rules and procedures for maintaining
order at the meeting, limitations on participation in such meeting
to stockholders of record of the Corporation and their duly
authorized and constituted proxies and such other persons as the
Chairman of the Board (or his or her designee) shall permit,
restrictions on entry to the meeting after the time fixed for the
commencement thereof, requiring ballots by written consent,
limitations on the time allotted to questions or comments by
participants and regulation of the opening and closing of the polls
for balloting on matters which are to be voted on by
ballot.
SECTION
2.2. Annual
Meetings. The annual meeting of stockholders of the
Corporation shall be held at such date and time as shall be
designated from time to time by the Board of Directors and stated
in the notice of the meeting, subject to any postponement in the
Board of Directors’ sole discretion, upon notice of such
postponement given in any manner deeded reasonable by the Board of
Directors.
SECTION
2.3. Special
Meetings. Special meetings of the stockholders of the
Corporation, for any purpose or purposes, unless otherwise
proscribed by the Delaware General Corporation Law
(“DGCL”) or by
the Certificate of Incorporation of the Corporation, as amended
(the “Certificate of
Incorporation”), may be called exclusively by: (i) the
Chairman of the Board or the Chief Executive Officer, President or
other executive officer of the Corporation, (ii) an action of the
Board of Directors or (iii) request in writing of the stockholders
of record, and only of record, owning not less than sixty-six and
two-thirds percent (66 2/3%) of the entire capital stock of the
Corporation issued and outstanding and entitled to vote. Such
request shall state the purpose or purposes of the proposed
meeting. The officers or directors shall fix the time and any
place, either within or without the State of Delaware, as the place
for holding such meeting.
1
SECTION
2.4. Notice
of Meeting. Written notice of the annual and each special
meeting of stockholders of the Corporation, stating the time, place
and purpose or purposes thereof, shall be given to each stockholder
entitled to vote thereat, not less than ten (10) nor more than
sixty (60) days before the meeting and shall be signed by the
Chairman of the Board, the President, the Chief Executive Officer
or the Secretary of the Corporation (the “Secretary”). The Board of
Directors may postpone a special meeting in its sole discretion in
any manner it deems reasonable.
SECTION
2.5. Business Conducted at
Meetings.
Section
2.5.1 At any meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the
meeting. To be properly brought before a meeting, business must be:
(a) specified in the notice of meeting (or any supplement thereto
provided within the notice period specified in Section 2.4) given
by or at the direction of the Chairman of the Board, the President,
the Chief Executive Officer or the Board of Directors, (b)
otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly
brought before the meeting by a stockholder or stockholders of
record, and only of record, holding not less than sixty-six and
two-thirds percent (66 2/3%) of the entire capital stock of the
Corporation issued and outstanding and entitled to vote in
accordance with applicable law, these Bylaws or otherwise. In
addition to any other applicable requirements set forth in these
Bylaws, the U.S. federal securities laws or otherwise, for business
to be properly brought before a meeting called by stockholders
representing not less than sixty-six and two-thirds percent (66
2/3%) of the entire capital stock of the Corporation, such
stockholder(s) must have given timely notice thereof in writing to
the Secretary. Any special meeting of the Corporation proposed to
be called by a stockholder or stockholders in such capacity shall
not be required to be held: (i) with respect to any matter, within
12 months after any annual or special meeting of stockholders at
which the same matter was included on the agenda, or if the same
matter will be included on the agenda at an annual meeting to be
held within 90 days after the receipt by the Corporation of such
request (the election or removal of directors to be deemed the same
matter with respect to all matters involving the election or
removal of directors) or (ii) if the purpose of the special meeting
is not a lawful purpose or if such request violates applicable law.
A stockholder may revoke a request for a special meeting at any
time by written revocation delivered to the Secretary, and if,
following such revocation, there are un-revoked requests from
stockholders holding in the aggregate less than the requisite
number of shares entitling the stockholders to request the calling
of a special meeting, the Board of Directors, in its discretion,
may cancel the special meeting. If none of the stockholders who
submitted the request for a special meeting appears or sends a
qualified representative to present the nominations proposed to be
presented or other business proposed to be conducted at the special
meeting, the Corporation need not present such nominations or other
business for a vote at such meeting.
Section
2.5.2 To be timely, a stockholder’s notice of a
proposal to be included at an annual meeting must be delivered to
or mailed and received at the principal executive offices of the
Corporation not less than ninety (90) days nor more than one
hundred twenty (120) days prior to the anniversary of the date on
which the Corporation first mailed its proxy materials for the
previous year’s annual meeting of stockholders (or the date
on which the Corporation mails its proxy materials for the current
year if during the prior year the Corporation did not hold an
annual meeting or if the date of the annual meeting was changed
more than thirty (30) days from the prior year).
2
Section
2.5.3 A record stockholders’ notice to the Secretary
shall set forth in writing as to each matter the stockholder(s)
propose to bring before the meeting: (a) a detailed description of
the business desired to be brought before the meeting and the
reasons for proposing such business, including the complete text of
any resolutions, bylaws or certificate of incorporation amendments
proposed for consideration (b) the name and address, as they appear
on the Corporation’s books, of the stockholders proposing
such business, (c) the class and number of shares of the
Corporation which are owned directly or indirectly of record and
directly or indirectly beneficially owned by the stockholders and
each of its affiliates (within the meaning of Rule 144 promulgated
under the Securities Act of 1933, as amended, or any successor rule
thereto (“Rule
144”)), including any shares of the Corporation owned
or controlled via derivatives, synthetic securities, hedged
positions and other economic and voting mechanisms, (d) any
material interest of the stockholders in such proposed business and
any agreements or understandings to which such stockholders are a
party which relate in any way, directly or indirectly, to the
proposed business to be conducted, including a description of all
arrangements or understandings between such stockholder and any
other person or persons (including their names), (e) a
representation as to whether or not such stockholder intends to
solicit proxies; (f) a representation as to whether or not such
stockholder intends to appear in person or by proxy at the
applicable meeting, and (g) such other information regarding the
stockholder in his, her or its capacity as a proponent of a
stockholder proposal that would be required to be disclosed in a
proxy statement or other filing with the United States Securities
and Exchange Commission (“SEC”) required to be made in
connection with the contested solicitation of proxies pursuant to
the SEC’s proxy rules.
Section
2.5.4 Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at a meeting except in
accordance with the procedures set forth in this Section 2.5. The
Chairman of the meeting shall, in his or her sole discretion,
determine and declare to the meeting whether or not any business
was properly brought before the meeting. Any such business not
properly brought before the meeting shall not be transacted.
Nothing in this Section 2.5 shall affect the right of a stockholder
to request inclusion of a proposal in the Corporation’s proxy
statement to the extent that such right is provided by an
applicable rule of the SEC. Notwithstanding the foregoing, the
advance notice provisions of these Bylaws shall apply to all
stockholder proposals regardless of whether such proposal is sought
to be included in the Corporation’s proxy statement or in a
separate proxy statement.
SECTION
2.6. Nomination of
Directors. Nomination of candidates for election as
directors of the Corporation at any meeting of stockholders called
for the election of directors, in whole or in part (an
“Election
Meeting”), must be made by the Board of Directors or
by any stockholder entitled to vote at such Election Meeting, in
accordance with the following procedures.
Section
2.6.1. Nominations made by the Board of Directors shall be made at
a meeting of the Board of Directors or by written consent of the
directors in lieu of a meeting prior to the date of the Election
Meeting. At the request of the Secretary, each proposed nominee
nominated by the Board of Directors shall provide the Corporation
with such information concerning himself or herself as is required,
under the rules of the SEC and any applicable securities exchange,
to be included in the Corporation’s proxy statement
soliciting proxies for his or her election as a
director.
Section
2.6.2. The exclusive means by which a stockholder may nominate a
director shall be by delivery of a notice to the Secretary, not
less than one hundred twenty (120) days prior to the date of an
Election Meeting, setting forth: (a) the name, age, business
address and the primary legal residence address of each nominee
proposed in such notice, (b) the principal occupation or employment
of such nominee, (c) the number of shares of capital stock of the
Corporation which are owned directly or indirectly of record and
directly or indirectly beneficially owned by the nominee and each
of its affiliates (within the meaning of Rule 144), including any
shares of the Corporation owned or controlled via derivatives,
hedged positions and other economic and voting mechanisms, (d) any
material agreements, understandings or relationships, including
financial transactions and compensation, between the nominating
stockholder and the proposed nominees and (d) such other
information concerning each such nominee as would be required,
under the rules of the SEC, in a proxy statement soliciting proxies
in a contested election of such nominees. Such notice shall include
a signed consent of each such nominee to serve as a director of the
Corporation, if elected. In addition, any stockholder nominee, to
be validly nominated, shall submit to the Secretary the
questionnaire required pursuant to Section 2.6.3 of these Bylaws. A
stockholder intending to nominate one or more candidates for
election as directors must comply with the advance notice bylaw
provisions specifically applicable to the nomination of candidates
for election as directors for such nomination to be properly
brought before the meeting.
3
Section
2.6.3 To be eligible to be a director nominee nominated by a
stockholder or stockholders for election or reelection as a
director of the Corporation, such nominee must deliver (in
accordance with the time periods prescribed for delivery of notice
under Section 2.6.2 of these Bylaws) to the Secretary at the
principal executive offices of the Corporation a written
questionnaire (the “Questionnaire”) with respect to
the background, qualification and experience of such person and the
background of any other person or entity on whose behalf the
nomination is being made (which questionnaire shall be in the form
approved by the Corporation and provided by the Secretary or such
Secretary’s designee) and a written representation and
agreement that such person: (a) will abide by the requirements of
these Bylaws and the Certificate of Incorporation as in effect at
the time of their nomination and as validly amended, (b) is
not and will not become a party to (1) any agreement,
arrangement or understanding with, and has not given any commitment
or assurance to, any person or entity as to how such person, if
elected as a director of the Corporation, will act or vote on any
issue or question (a “Voting
Commitment”) that has not been disclosed to the
Corporation or (2) any Voting Commitment that could limit or
interfere with such person’s ability to comply, if elected as
a director of the Corporation, with such person’s fiduciary
duties under applicable law, (c) is not and will not become a
party to any agreement, arrangement or understanding with any
person or entity other than the Corporation with respect to any
direct or indirect compensation, reimbursement or indemnification
in connection with service or action as a director that has not
been disclosed therein, and (d) in such person’s
individual capacity and on behalf of any person or entity on whose
behalf the nomination is being made, would be in compliance, if
elected as a director of the Corporation, and will comply with all
applicable publicly disclosed corporate governance, conflict of
interest, confidentiality and stock ownership and trading policies
and guidelines of the Corporation. If, prior to the Election
Meeting, there is a change in any information set forth on the
Questionnaire, then such director candidate shall promptly notify
the Secretary by submitting a revised Questionnaire.
Section
2.6.4.In the event that a person is validly designated by the Board
of Directors as a nominee in accordance with this Section 2.6 and
shall thereafter become unable or willing to stand for election to
the Board of Directors, the Board of Directors may designate a
substitute nominee who meets all applicable standards under these
Bylaws. The proxy or
proxy statement, if any, may provide that any proxy received for
the election of a director previously nominated but who was
subsequently become unable or unwilling to stand for election may
be voted for the substituted nominee designated by the Board of
Directors.
Section
2.6.5. If the Chairman of the Election Meeting determines that a
nomination was not made in accordance with the foregoing
procedures, such nomination shall be void.
SECTION
2.7. Quorum;
Adjournment.
Section
2.7.1 The holders of a majority of the shares of capital
stock issued and outstanding and entitled to vote thereat, present
in person or represented by proxy (provided the proxy has authority
to vote on at least one matter at such meeting), shall constitute a
quorum at any meeting of stockholders for the transaction of
business, except when stockholders are required to vote by class,
in which event a majority of the issued and outstanding shares of
the appropriate class shall be present in person or by proxy
(provided the proxy has authority to vote on at least one matter at
such meeting) in order to constitute a quorum as to such class
vote, and except as otherwise provided by the DGCL or by the
Certificate of Incorporation. The stockholders present at a duly
called or held meeting at which a quorum is present may continue to
do business until adjournment, notwithstanding the withdrawal of
enough stockholders to have less than a quorum if any action taken
(other than adjournment) is approved by at least a majority of the
shares required to constitute a quorum.
4
Section
2.7.2 Notwithstanding any other provision of the Certificate
of Incorporation or these Bylaws, at any annual or special meeting
of stockholders of the Corporation, whether or not a quorum is
present, the Chairman of the Board or the person presiding as
Chairman of the meeting shall have power to adjourn the meeting
from time to time, without notice other than announcement at the
meeting, whether or not a quorum shall be present or represented.
If the adjournment is for more than thirty (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 in accordance
with Section 2.4 of these Bylaws. At such adjourned meeting at
which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as
originally notified.
SECTION
2.8. Voting;
Proxies.
Section
2.8.1 Except as provided for below or by applicable law, rule
or regulation, when a quorum is present at any meeting of the
stockholders, any action by the stockholders on a matter except the
election of directors shall be approved if approved by the majority
of the votes cast. Except as provided below with respect to
Contested Elections, each nominee for director shall be elected by
the majority of the votes cast with respect to that nominee’s
election at any meeting for the election of directors at which a
quorum is present. Abstention shall not be construed as a vote cast
for the purpose of electing directors. Directors shall be elected
by a plurality of the votes cast in any Contested Election. For purposes of
these Bylaws, a “Contested
Election” means an election of directors with respect
to which, as of five days prior to the date the Corporation first
mails the notice of meeting for such meeting to stockholders, there
are more nominees for election than positions on the Board of
Directors to be filled by election at the meeting. In determining
the number of votes cast in a Contested Election, abstentions and
broker non-votes, if any, will not be treated as votes cast. The
provisions of this paragraph will govern with respect to all votes
of stockholders except as otherwise provided for in the Certificate
of Incorporation or by a specific statutory provision superseding
the provisions of these Bylaws.
Section
2.8.2 Every stockholder having the right to vote shall be
entitled to vote in person, or by proxy: (a) appointed by an
instrument in writing subscribed by such stockholder or by his or
her duly authorized attorney or (b) authorized by the transmission
of an electronic record by the stockholder to the person who will
be the holder of the proxy or to a firm which solicits proxies or
like agent who is authorized by the person who will be the holder
of the proxy to receive the transmission subject to any procedures
the Board of Directors may adopt from time to time to determine
that the electronic record is authorized by the stockholder;
provided, however, that no
such proxy shall be valid after the expiration of three (3) years
from the date of its execution, or unless the person executing it
specifies therein the length of time for which it is to continue in
force, which in no case shall exceed seven (7) years from the date
of its execution. If such instrument or record shall designate two
(2) or more persons to act as proxies, unless such instrument shall
provide the contrary, a majority of such persons present at any
meeting at which their powers thereunder are to be exercised shall
have and may exercise all the powers of voting or giving consents
thereby conferred, or if only one (1) be present, then such powers
may be exercised by that one (1). Unless required by the DGCL or
determined by the Chairman of the meeting to be advisable, the vote
on any matter need not be by written ballot. No stockholder shall
have cumulative voting rights.
5
SECTION
2.9. Consent of
Stockholders. Whenever the vote of the stockholders at a
meeting thereof is required or permitted to be taken for or in
connection with any corporate action, the meeting and vote of
stockholders may be dispensed with if stockholders, 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, consent in writing
to such corporate action being taken; provided, that in no case
shall the written consent be by the holders of stock having less
than the minimum percentage of the vote required by the DGCL. Any
action by consent of the stockholders pursuant to this Section 2.9
must follow the notice and timing procedures of Section 2.5
applicable to any business to be conducted at a stockholder
meeting. Further, upon the request of a stockholder to conduct a
consent solicitation, the Board of Directors shall adopt a
resolution fixing a record date within ten (10) days of the date on
which a request therefor is received, provided that such record
date shall not be more than ten (10) days after the date of the
adoption of such resolution.
SECTION
2.10. Voting of Stock of
Certain Holders. Shares standing in the name of another
entity, domestic or foreign, may be voted by such officer, agent or
proxy as the governing documents of such entity may prescribe, or
in the absence of such provision, as the Board of Directors or
governing body of such entity may determine. Shares standing in the
name of a deceased person may be voted by the executor or
administrator of such deceased person, either in person or by
proxy. Shares standing in the name of a guardian, conservator or
trustee may be voted by such fiduciary, either in person or by
proxy, but no such fiduciary shall be entitled to vote shares held
in such fiduciary capacity without a transfer of such shares into
the name of such fiduciary. Shares outstanding in the name of a
receiver may be voted by such receiver. A stockholder whose shares
are pledged shall be entitled to vote such shares, unless in the
transfer by the pledgor on the books of the Corporation, he or she
has expressly empowered the pledgee to vote thereon, in which case
only the pledgee, or his or her proxy, may represent the stock and
vote thereon.
SECTION
2.11. Treasury
Stock. The Corporation shall not vote, directly or
indirectly, shares of its own stock owned by it; and such shares
shall not be counted in determining the total number of outstanding
shares.
SECTION
2.12. Fixing Record
Date. The Board of Directors may fix in advance a date for
any meeting of stockholders (which date shall not be more than
sixty (60) nor less than ten (10) days preceding the date of any
such meeting of stockholders), a date for payment of any dividend
or distribution, a date for the allotment of rights, a date when
any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining a consent of
stockholders (which date shall not precede or be more than ten (10)
days after the date the resolution setting such record date is
adopted by the Board of Directors), in each case as a record date
(the “Record
Date”) for the determination of the stockholders
entitled to notice of, and to vote at, any such meeting and any
adjournment thereof, to receive payment of any such dividend or
distribution, to receive any such allotment of rights, to exercise
the rights in respect of any such change, conversion or exchange of
capital stock, or to give such consent, as the case may be. In any
such case such stockholders and only such stockholders as shall be
stockholders of record on the Record Date shall be entitled to such
notice of and to vote at any such meeting and any adjournment
thereof, to receive payment of such dividend or distribution, to
receive such allotment of rights, to exercise such rights, or to
give such consent, as the case may be, notwithstanding any transfer
of any stock on the books of the Corporation after any such Record
Date.
6
ARTICLE 3
BOARD OF DIRECTORS
SECTION
3.1. Powers. The
business and affairs of the Corporation shall be managed by its
Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
Subject to compliance with the provisions of the DGCL, the powers
of the Board of Directors shall include the power to make a
liquidating distribution of the assets, and wind up the affairs of,
the Corporation.
SECTION
3.2. Number and
Qualifications. The number of directors which shall
constitute the whole Board of Directors shall be not less than one
(1) and not more than nine (9). Within the limits above specified,
the number of the directors of the Corporation shall be determined
solely in the discretion of the Board of Directors. Directors need
not be residents of Delaware or stockholders of the
Corporation.
SECTION
3.3 Classification of the
Board of Directors. The Board of Directors shall be divided
into three (3) classes.
SECTION
3.4. Vacancies, Additional
Directors; Removal From Office; Resignation. If any vacancy
occurs in the Board of Directors caused by death, resignation,
retirement, disqualification, removal from office or otherwise, or
if any new directorship is created by an increase in the authorized
number of directors, a majority of the directors then in office,
though less than a quorum, or a sole remaining director, but not
the stockholders of the Corporation, may choose a successor or fill
the newly created directorship. Subject to Section 3.3, any
director so chosen shall hold office for the unexpired term of his
or her predecessor in his or her office and until his or her
successor shall be elected and qualified, unless sooner displaced.
No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director. A
director may be removed from his or her position by the holders of
a majority of the shares then entitled to vote at an election of
such director. The stockholders of the Corporation may only remove
a member of the Board of Directors for cause, which removal shall
only occur at a meeting of the stockholders, duly called, by the
affirmative vote of sixty-six and two-thirds percent (66 2/3%) of
the stockholders entitled to vote thereat. Any director may resign
or voluntarily retire upon giving written notice to the Chairman of
the Board or the Board of Directors. Such retirement or resignation
shall be effective upon the giving of the notice, unless the notice
specifies a later time for its effectiveness. If such retirement or
resignation is effective at a future time, the Board of Directors
may elect a successor to take office when the retirement or
resignation becomes effective. For purposes of this Section 3.4,
“cause” shall mean: (i) the director’s conviction
or plea of nolo contendere of a serious felony involving (a) moral
turpitude or (b) a violation of federal or state securities laws,
but excluding any conviction based entirely on vicarious liability,
(ii) the director’s commission of any material act of
dishonesty resulting or intended to result in material personal
gain or enrichment of such director at the expense of the
Corporation or any of its subsidiaries and which act, if made the
subject of criminal charges, would be reasonably likely to be
charged as a felony, or (iii) the director being adjudged legally
incompetent by a court of competent jurisdiction.
SECTION
3.5. Regular
Meetings. A regular meeting of the Board of Directors shall
be held each year, without notice other than this Bylaw provision,
at the place of, and immediately prior to and/or following, the
annual meeting of stockholders; and other regular meetings of the
Board of Directors shall be held during each year, at such time and
place as the Board of Directors may from time to time provide by
resolution, either within or without the State of Delaware, without
other notice than such resolution.
SECTION
3.6. Special
Meeting. A special meeting of the Board of Directors may be
called by the Chairman of the Board, the President or the Chief
Executive Officer and shall be called by the Secretary on the
written request of any two (2) directors. The Chairman of the
Board, President or the Chief Executive Officerso calling, or the
directors so requesting, any such meeting shall fix the time and
any place, either within or without the State of Delaware, as the
place for holding such meeting.
7
SECTION
3.7. Notice of
Special Meeting. Written notice (including via email) of
special meetings of the Board of Directors shall be given to each
director at least twenty-four (24) hours prior to the time of a
special meeting. Any director may waive notice of any meeting. The
attendance of a director at any meeting shall constitute a waiver
of notice of such meeting, except where a director attends a
meeting solely for the purpose of objecting 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 special meeting of the Board of Directors need be specified
in the notice or waiver of notice of such meeting, except that
notice shall be given with respect to any matter when notice is
required by the DGCL.
SECTION
3.8. Quorum. A
majority of the Board of Directors then serving shall constitute a
quorum for the transaction of business at any meeting of the Board
of Directors, and the act of a majority of the directors present at
any meeting at which there is quorum shall be the act of the Board
of Directors, except as may be otherwise specifically provided by
the DGCL, by the Certificate of Incorporation or by these Bylaws.
If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting,
without notice other than announcement at the meeting, until a
quorum shall be 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 of by at
least a majority of the required quorum for that
meeting.
SECTION
3.9. Action Without
Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to
be taken at any meeting of the Board of Directors, or of any
committee thereof as provided in Article 4 of these Bylaws, may be
taken without a meeting, if a written consent thereto is signed by
all of the members of the Board of Directors or of such committee,
as the case may be. Evidence of any consent to action under this
Section 3.9 may be provided in writing, including electronically
via email or facsimile.
SECTION
3.10. Meeting by
Telephone. Any action required or permitted to be taken by
the Board of Directors or any committee thereof may be taken by
means of a meeting by telephone conference or similar
communications method so long as all persons participating in the
meeting can hear each other. Any person participating in such
meeting shall be deemed to be present in person at such
meeting.
SECTION
3.11. Compensation. Directors, as
such, may receive reasonable compensation for their services, which
shall be set by the Board of Directors, and expenses of attendance
at each regular or special meeting of the Board of Directors;
provided, however, that
nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity and
receiving additional compensation therefor. Members of special or
standing committees may be allowed like compensation for their
services on committees.
SECTION
3.12. Rights of
Inspection. Every director shall have the absolute right at
any reasonable time to inspect and copy all books, records and
documents of every kind and to inspect the physical properties of
the Corporation and also of its subsidiary corporations, domestic
or foreign. Such inspection by a director may be made in person or
by agent or attorney and includes the right to copy and obtain
extracts.
8
ARTICLE 4
COMMITTEES OF DIRECTORS
SECTION
4.1. Generally. The
Board of Directors may, by resolution passed by a majority of the
whole Board of Directors, designate one or more additional special
or standing committees, each such additional committee to consist
of one or more of the directors of the Corporation. Each such
committee shall have and may exercise such of the powers of the
Board of Directors in the management of the business and affairs of
the Corporation as may be provided in such resolution, except as
delegated by these Bylaws or by the Board of Directors to another
standing or special committee or as may be prohibited by
law.
SECTION
4.2. Committee
Operations. A majority of a committee shall constitute a
quorum for the transaction of any committee business. Such
committee or committees shall have such name or names and such
limitations of authority as provided in these Bylaws or as may be
determined from time to time by resolution adopted by the Board of
Directors. The Corporation shall pay all expenses of committee
operations. The Board of Directors may designate one or more
appropriate directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of
such committee. In the absence or disqualification of any members
of such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether or
not he, she or they constitute a quorum, may unanimously appoint
another appropriate member of the Board of Directors to act at the
meeting in the place of any absent or disqualified
member.
SECTION
4.3. Minutes. Each
committee of directors shall keep regular minutes of its
proceedings and report the same to the Board of Directors when
required. The Corporation’s Secretary, any Assistant
Secretary or any other designated person shall (a) serve as
the Secretary of the special or standing committees of the Board of
Directors of the Corporation, (b) keep regular minutes of
standing or special committee proceedings, (c) make available
to the Board of Directors, as required, copies of all resolutions
adopted or minutes or reports of other actions recommended or taken
by any such standing or special committee and (d) otherwise as
requested keep the members of the Board of Directors apprised of
the actions taken by such standing or special
committees.
ARTICLE 5
NOTICE
SECTION
5.1. Methods of Giving
Notice.
SECTION
5.1.1. Notice to Directors
or Committee Members. Whenever under the provisions of the
DGCL, the Certificate of Incorporation or these Bylaws, notice is
required to be given to any director or member of any committee of
the Board of Directors, personal notice is not required but such
notice may be: (a) given in writing and mailed to such director or
committee member, (b) sent by electronic transmission (including
via e-mail) to such director or committee member, or (c) given
orally or by telephone; provided,
however, that any notice from a stockholder to any director
or member of any committee of the Board of Directors must be given
in writing and mailed to such director or member and shall be
deemed to be given upon receipt by such director or member. If
mailed, notice to a director or member of a committee of the Board
of Directors shall be deemed to be given when deposited in the
United States mail first class, or by overnight courier, in a
sealed envelope, with postage thereon prepaid, addressed, to such
person at his or her business address. If sent by electronic
transmission, notice to a director or member of a committee of the
Board of Directors shall be deemed to be given if by (i) facsimile
transmission, when receipt of the fax is confirmed electronically,
(ii) electronic mail, when delivered to an electronic mail address
of the director or member, (iii) a posting on an electronic network
together with a separate notice to the director or member of the
specific posting, upon the later of (1) such posting and (2) the
giving of the separate notice (which notice may be given in any of
the manners provided above), or (iv) any other form of electronic
transmission, when delivered to the director or
member.
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SECTION
5.1.2. Notices to
Stockholders. Whenever under the provisions of the DGCL, the
Certificate of Incorporation or these Bylaws, notice is required to
be given to any stockholder, personal notice is not required but
such notice may be given: (a) in writing and mailed to such
stockholder, (b) by a form of electronic transmission consented to
by the stockholder to whom the notice is given or (c) as otherwise
permitted by the SEC. If mailed, notice to a stockholder shall be
deemed to be given when deposited in the United States mail in a
sealed envelope, with postage thereon prepaid, addressed to the
stockholder at the stockholder’s address as it appears on the
records of the Corporation. If sent by electronic transmission,
notice to a stockholder shall be deemed to be given if by (i)
facsimile transmission, when directed to a number at which the
stockholder has consented to receive notice, (ii) electronic mail,
when directed to an electronic mail address at which the
stockholder has consented to receive notice, (iii) a posting on an
electronic network together with a separate notice to the
stockholder of the specific posting, upon the later of (1) such
posting and (2) the giving of the separate notice (which notice may
be given in any of the manners provided above), or (iv) any other
form of electronic transmission, when directed to the
stockholder.
SECTION
5.2. Written
Waiver. Whenever any notice is required to be given by the
DGCL, the Certificate of Incorporation or these Bylaws, a waiver
thereof in a signed writing or sent by the transmission of an
electronic record attributed to the person or persons entitled to
said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
SECTION
5.3. Consent.
Whenever all parties entitled to vote at any meeting, whether of
directors or stockholders, consent, either by a writing on the
records of the meeting or filed with the Secretary, or by presence
at such meeting and oral consent entered on the minutes, or by
taking part in the deliberations at such meeting without objection,
the actions taken at such meeting shall be as valid as if had at a
meeting regularly called and noticed. At such meeting any business
may be transacted which is not excepted from the written consent or
to the consideration of which no objection for lack of notice is
made at the time, and if any meeting be irregular for lack of
notice or such consent, provided a quorum was present at such
meeting, the proceedings of such meeting may be ratified and
approved and rendered valid and the irregularity or defect therein
waived by a writing signed by all parties having the right to vote
thereat. Such consent or approval, if given by stockholders, may be
by proxy or power of attorney, but all such proxies and powers of
attorney must be in writing.
ARTICLE 6
OFFICERS
SECTION
6.1. Officers. The
officers of the Corporation shall include the Chairman of the
Board, the President, the Chief Executive Officer, the Chief
Financial Officer and the Secretary. The officers of the
Corporation may include a Treasurer and such other officers and
agents with such titles as the Board of Directors may prescribe,
including, without limitation, one or more Vice Presidents (any one
or more of which may be designated Senior Executive Vice President,
Executive Vice President, Senior Vice President), Assistant Vice
Presidents, Assistant Secretaries and Assistant Treasurers. All
officers of the Corporation shall hold their offices for such terms
and shall exercise such powers and perform such duties as
prescribed by these Bylaws, the Board of Directors or President, as
applicable. Any two or more offices may be held by the same person.
The Chairman of the Board shall be elected from among the
directors. No officer need be a director or a stockholder of the
Corporation. The Board of Directors may delegate to any officer of
the Corporation the power to appoint other officers and to
prescribe their respective duties and powers.
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SECTION
6.2. Election and Term of
Office. The President, Chief Executive Officer, Chairman of
the Board, Chief Financial Officer and Secretary shall be elected
only by, and shall serve only at the pleasure of, the Board of
Directors. All other officers of the Corporation shall be appointed
as the President or Chief Executive Officer deems necessary. Each
officer shall hold office until his or her successor shall have
been chosen and shall have qualified or until his or her death or
the effective date of his or her resignation or removal, or until
he or she shall cease to be a director in the case of the Chairman
of the Board.
SECTION
6.3. Removal and
Resignation. The President, Chief Executive Officer,
Chairman of the Board, Chief Financial Officer and Secretary may be
removed, either with or without cause, by the affirmative vote of a
majority of the Board of Directors. Any other officer or agent may
be removed, either with or without cause, by action of the
President or the Chief Executive Officer whenever, in his or her
judgment, the best interests of the Corporation shall be served
thereby, but such right of removal and any purported removal shall
be without prejudice to the contractual rights, if any, of the
person so removed. Any executive officer or other officer or agent
may resign at any time by giving written notice to the Corporation.
Any such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein, and unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION
6.4. Vacancies. Any vacancy in the
officer of the President, Chief Executive Officer, Chairman of the
Board, Chief Financial Officer or Secretary occurring by death,
resignation, removal or otherwise, shall be filled by the Board of
Directors for the unexpired portion of the term. Any vacancy in any
other office may be filled as the President or Chief Executive
Officer deems necessary.
SECTION
6.5. Compensation.
The compensation of the President and the Chief Executive Officer
shall be determined by the Board of Directors or a designated
committee thereof. Compensation of all other officers of the
Corporation shall be determined by the President or the Chief
Executive Officer in consultation with the Board of Directors or a
designated committee thereof. No officer who is also a director
shall be prevented from receiving such compensation by reason of
his or her also being a director.
SECTION
6.6. Chairman of the
Board. The Chairman of the Board (who may also be designated
as Executive Chairman if serving as an employee of the
Corporation), if such an officer be elected, shall preside at all
meetings of the Board of Directors and of the stockholders of the
Corporation. In the Chairman of the Board’s absence, such
duties shall be attended to by any vice chairman of the Board of
Directors, or if there is no vice chairman, or such vice chairman
is absent, then by the President or the Chief Executive Officer.
The Chairman of the Board shall act as liaison between the Board of
Directors and the executive officers of the Corporation and shall
be responsible for general oversight of such executive officers.
The Chairman of the Board may also, but shall not be required to,
hold the position of Chief Executive Officer of the Corporation, if
so elected or appointed by the Board of Directors. The Chairman of
the Board shall formulate and submit to the Board of Directors
matters of general policy for the Corporation and shall perform
such other duties as usually appertain to the office or as may be
prescribed by the Board of Directors. He or she may sign with the
President, the Chief Executive Officer or any other officer of the
Corporation thereunto authorized by the Board of Directors
certificates for shares of the Corporation, the issuance of which
shall have been authorized by resolution of the Board of Directors,
and any deeds or bonds, which the Board of Directors has authorized
to be executed, except in cases where the signing and execution
thereof has been expressly delegated or reserved by these Bylaws or
by the Board of Directors to some other officer or agent of the
Corporation, or shall be required by law to be otherwise
executed.
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SECTION
6.7. President. The
President shall, subject to the oversight by and control of the
Board of Directors and the Chairman of the Board, have general and
active management of the business of the Corporation and shall see
that all orders and resolutions of the Board of Directors are
carried into effect. The President may also, but shall not be
required to, hold the position of Chief Executive Officer of the
Corporation, if so elected or appointed by the Board of Directors.
The President shall keep the Board of Directors and the Chairman of
the Board fully informed and shall consult them concerning the
business of the Corporation. Subject to the supervisory powers of
the Board and the Chairman of the Board, the President may sign
with the Chairman of the Board or any other officer of the
Corporation thereunto authorized by the Board of Directors,
certificates for shares of capital stock of the Corporation, the
issuance of which shall have been authorized by resolution of the
Board of Directors, and any deeds, bonds, mortgages, contracts,
checks, notes, drafts or other instruments which the Board of
Directors has authorized to be executed, except in cases where the
signing and execution thereof has been expressly delegated by these
Bylaws or by the Board of Directors to some other officer or agent
of the Corporation, or shall be required by law to be otherwise
executed. In general, he or she shall perform all other duties
normally incident to the office of the President, except any duties
expressly delegated to other persons by these Bylaws, the Board of
Directors and such other duties as may be prescribed by the
stockholders, Chairman of the Board or the Board of Directors from
time to time.
SECTION
6.8. Chief Executive
Officer. The Chief Executive Officer, if any, shall, in
general, perform such duties as usually pertain to the position of
Chief Executive Officer and such duties as may be prescribed by the
Board of Directors.
SECTION
6.9. Chief Financial
Officer. The Chief Financial Officer, shall, in general,
perform such duties as usually pertain to the position of chief
financial officer and such duties as may be prescribed by the Board
of Directors, the President or the Chief Executive
Officer.
SECTION
6.10. Secretary.
The Secretary, if any, shall (a) keep the minutes of the
meetings of the stockholders, the Board of Directors and committees
of directors; (b) see that all notices are duly given in
accordance with the provisions of these Bylaws and as required by
law; (c) be custodian of the corporate records and of the seal
of the Corporation, and see that the seal of the Corporation or a
facsimile thereof is affixed to all certificates for shares prior
to the issuance thereof and to all documents, the execution of
which on behalf of the Corporation under its seal is duly
authorized in accordance with the provisions of these Bylaws;
(d) keep or cause to be kept a register of the post office
address of each stockholder which shall be furnished by such
stockholder; (e) have general charge of other stock transfer
books of the Corporation; and (f) in general, perform all
duties normally incident to the office of the Secretary and such
other duties as from time to time may be assigned to him or her by
the Chairman of the Board, the President, the Chief Executive
Officer or the Board of Directors.
SECTION
6.11. Treasurer.
The Treasurer, if any, shall (a) have charge and custody of
and be responsible for all funds and securities of the Corporation;
receive and give receipts for monies due and payable to the
Corporation from any source whatsoever and deposit all such moneys
in the name of the Corporation in such banks, trust companies or
other depositories as shall be selected in accordance with the
provisions of Section 7.3 of these Bylaws; (b) prepare, or
cause to be prepared, for submission at each regular meeting of the
Board of Directors, at each annual meeting of stockholders, and at
such other times as may be required by the Board of Directors, the
Chairman of the Board, the President or the Chief Executive
Officer, a statement of financial condition of the Corporation in
such detail as may be required; and (c) in general, perform
all the duties incident to the office of Treasurer and such other
duties as from time to time may be assigned to him or her by the
Chairman of the Board, the President, the Chief Executive Officer
or the Board of Directors. If required by the Board of Directors,
the Treasurer shall give a bond for the faithful discharge of his
or her duties in such sum and with such surety or sureties as the
Board of Directors shall determine.
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ARTICLE 7
EXECUTION OF CORPORATE INSTRUMENTS AND
VOTING OF SECURITIES OWNED BY THE CORPORATION
SECTION
7.1. Contracts.
Subject to the provisions of Section 6.1, the Board of Directors
may authorize any officer, officers, agent or agents to enter into
any contract or execute and deliver an instrument in the name of
and on behalf of the Corporation, and such authority may be general
or confined to specific instances.
SECTION
7.2. Checks, etc.
All checks, demands, drafts or other orders for the payment of
money, and notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or officers
or such agent or agents of the Corporation, and in such manner, as
shall be determined by the Board of Directors.
SECTION
7.3. Deposits. All
funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Chairman of the Board,
the President, the Chief Executive Officer, the Treasurer or the
Chief Financial Officer may be empowered by the Board of Directors
to select or as the Board of Directors may select.
SECTION
7.4. Voting of Securities
Owned by Corporation. All stock and other securities of any
other corporation owned or held by the Corporation for itself, or
for other parties in any capacity, and all proxies with respect
thereto shall be executed by the person authorized to do so by
resolution of the Board of Directors or, in the absence of such
authorization, by the Chairman of the Board, the Chief Executive
Officer, the President or any Vice President.
ARTICLE 8
SHARES OF STOCK
SECTION
8.1. Issuance. Each stockholder of
the Corporation shall be entitled to a certificate or certificates
showing the number of shares of stock registered in his or her name
on the books of the Corporation. The certificates shall be in such
form as may be determined by the Board of Directors, shall be
issued in numerical order and shall be entered in the books of the
Corporation as they are issued. They shall exhibit the
holder’s name and the number of shares and shall be signed by
the Chairman of the Board, the President and the Chief Executive
Officer or such other officers as may from time to time be
authorized by resolution of the Board of Directors. Any or all the
signatures on the certificate may be a facsimile. In case any
officer who has signed or whose facsimile signature has been placed
upon any such certificate shall have ceased to be such officer
before such certificate is issued, such certificate may
nevertheless be issued by the Corporation with the same effect as
if such officer had not ceased to be such officer at the date of
its issue. If the Corporation shall be authorized to issue more
than one class of stock or more than one series of any class, the
designation, preferences and relative participating, option or
other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences
and rights shall be set forth in full or summarized on the face or
back of the certificate which the Corporation shall issue to
represent such class of stock; provided that except as otherwise
provided by the DGCL, in lieu of the foregoing requirements there
may be set forth on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock,
a statement that the Corporation will furnish to each stockholder
who so requests the designations, preferences and relative
participating, option or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and rights. All certificates
surrendered to the Corporation for transfer shall be canceled and
no new certificate shall be issued until the former certificate for
a like number of shares shall have been surrendered and canceled,
except that in the case of a lost, stolen, destroyed or mutilated
certificate a new certificate (or uncertificated shares in lieu of
a new certificate) may be issued therefor upon such terms and with
such indemnity, if any, to the Corporation as the Board of
Directors may prescribe. In addition to the above, all certificates
(or uncertificated shares in lieu of a new certificate) evidencing
shares of the Corporation’s stock or other securities issued
by the Corporation shall contain such legend or legends as may from
time to time be required by the DGCL.
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SECTION
8.2. Lost
Certificates. The Board of Directors may direct that a new
certificate or certificates (or uncertificated shares in lieu of a
new certificate) be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates (or uncertificated shares in lieu of a
new certificate), the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner
of such lost, stolen or destroyed certificate or certificates, or
his or her legal representative, to advertise the same in such
manner as it shall require or to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate or
certificates alleged to have been lost, stolen or destroyed, or
both.
SECTION
8.3. Transfers. In
the case of shares of stock represented by a certificate, upon
surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to
issue a new certificate to the person entitled thereto, cancel the
old certificate and record the transaction upon its books.
Transfers of shares shall be made only on the books of the
Corporation by the registered holder thereof, or by his or her
attorney thereunto authorized by power of attorney and filed with
the Secretary and the Corporation’s transfer agent, if
any.
SECTION
8.4. Registered
Stockholders. The Corporation shall be entitled to treat the
holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express
or other notice thereof, except as otherwise provided by the laws
of the State of Delaware.
SECTION
8.5. Uncertificated
Shares. The Board of Directors may approve the issuance of
uncertificated shares of some or all of the shares of any or all of
its classes or series of capital stock.
ARTICLE 9
DIVIDENDS
SECTION
9.1. Declaration.
Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in
property or in shares of capital stock, subject to the provisions
of the Certificate of Incorporation.
SECTION
9.2. Reserve.
Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums
as the Board of Directors from time to time, in its absolute
discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other
purpose as the Board of Directors shall think conducive to the
interests of the Corporation, and the Board of Directors may modify
or abolish any such reserve in the manner in which it was
created.
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ARTICLE 10
INDEMNIFICATION
SECTION
10.1. Generally.
The Corporation shall provide indemnification to the fullest extent
provided for by law, as specified in the Certificate of
Incorporation.
SECTION
10.2. Contested Director
Indemnification. Notwithstanding anything to the contrary
contained in these Bylaws, a director who was elected in any
Contested Election who is not a continuing director shall not be
entitled to any indemnification or advancement of expenses unless
and until a majority of the continuing directors vote that the
indemnification provisions set forth in the Certificate of
Incorporation shall apply to such newly elected
director.
ARTICLE 11
MISCELLANEOUS
SECTION
11.1. Books. The
books of the Corporation may be kept within or without the State of
Delaware (subject to any provisions contained in the DGCL) at such
place or places as may be designated from time to time by the Board
of Directors.
SECTION
11.2. Fiscal Year.
The fiscal year of the Corporation shall be such fiscal year as may
be designated by the Board of Directors.
ARTICLE 12
AMENDMENTS
The
stockholders of the Corporation may alter, amend, repeal or the
remove any Bylaw only by the affirmative vote of sixty-six and
two-thirds percent (66 2/3%) of the stockholders entitled to vote
at a meeting of the stockholders, duly called; provided, however,
that no such change to any Bylaw shall alter, modify, waive,
abrogate or diminish the Corporation’s obligation to provide
the indemnity called for by Article 10 of these Bylaws, the
Certificate of Incorporation or applicable law. Subject to the laws
of the State of Delaware, the Board of Directors may, by majority
vote of those present at any meeting at which a quorum is present,
alter, amend or repeal these Bylaws, or enact such other Bylaws as
in their judgment may be advisable for the regulation of the
conduct of the affairs of the Corporation.
# #
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