Attached files
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
CELLULAR BIOMEDICINE GROUP, INC.
A Delaware Corporation
Adopted as of February 19, 2021
Article I
OFFICES
Section 1. Registered
Office. The registered office
of Cellular Biomedicine Group, Inc. (the “Corporation”)
in the State of Delaware shall be located at Suite 302, 4001
Kennett Pike, County of New Castle, Wilmington, DE 19807. The name
of the Corporation’s registered agent at such address shall
be Maples Fiduciary Services (Delaware) Inc. The registered office
and/or registered agent of the Corporation may be changed from time
to time by action of the board of directors.
Section 2. Other
Offices. The Corporation may
also have offices at such other places, both within and outside of
the State of Delaware, as the board of directors may from time to
time determine or the business of the Corporation may
require.
Article II
MEETINGS OF STOCKHOLDERS
Section 1. Place and Time of
Meetings. An annual meeting of
the stockholders shall be held each year for the purpose of
electing directors and conducting such other proper business as may
come before the meeting. The date, time and place of the annual
meeting may be determined by resolution of the board of directors
or as set by the president of the Corporation. No annual meeting of
the stockholders need be held if not required by the
Corporation’s certificate of incorporation, as the same may
be amended from time to time (the “Certificate of
Incorporation”) or by the
General Corporation Law of the State of Delaware (as amended from
time to time (the “DGCL”)).
Section 2. Special
Meetings. Special meetings of
stockholders may be called for any purpose (including, without
limitation, the filling of board vacancies and newly created
directorships), and may be held at such time and place, within or
outside of the State of Delaware, as shall be stated in a notice of
meeting or in a duly executed waiver of notice thereof. Such
meetings may be called at any time by two or more members of the
board of directors, the chief executive officer or the president
and shall be called by the chief executive officer or the president
upon the written request of holders of shares entitled to cast not
less than fifty percent (50%) of the outstanding shares of any
series or class of the Corporation’s capital
stock.
Section 3. Place of
Meetings. The board of
directors may designate any place, either within or outside of the
State of Delaware, and/or by means of remote communication, as the
place of meeting for any annual meeting or for any special meeting
called by the board of directors. If no designation is made, or if
a special meeting is otherwise called, the place of meeting shall
be the principal executive office of the
Corporation.
Section 4. Notice.
Whenever stockholders are required or permitted to take action at a
meeting, written or printed notice stating the place, date, time,
the means of remote communication, if any, and, in the case of
special meetings, the purpose or purposes, of such meeting, shall
be given to each stockholder entitled to vote at such meeting not
less than 10 nor more than 60 days before the date of the meeting.
All such notices shall be delivered, either personally or by mail,
or by a form of electronic transmission, by or at the direction of
the board of directors, the chief executive officer, the president
or the secretary, and if mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, postage
prepaid, addressed to the stockholder at his, her or its address as
the same appears on the records of the Corporation. Attendance of a
person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends 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.
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Section 5. Stockholders
List. The officer having charge
of the stock ledger of the Corporation shall make, at least 10 days
before every meeting of the stockholders, a complete list of the
stockholders entitled to vote at such meeting arranged in
alphabetical order, showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such
list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours, for
a period of at least 10 days prior to the meeting, 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 during ordinary business hours at the principal
place of business of the Corporation. In the event that the
Corporation determines to make the list available on an electronic
network, the Corporation may take reasonable steps to ensure that
such information is available only to stockholders of the
Corporation. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. 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.
Section 6. Quorum.
Except as otherwise provided by applicable law or by the
Certificate of Incorporation, a majority of the outstanding shares
of the Corporation entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of stockholders. If
less than a majority of the outstanding shares are represented at a
meeting, a majority of the shares so represented may adjourn the
meeting from time to time in accordance with Section 7 of this
Article II, until a quorum shall be present or
represented.
Section 7. Adjourned
Meetings. When a meeting is
adjourned to another time and place, notice need not be given of
the adjourned meeting if the time and place 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 thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the Corporation may
transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days,
or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the
meeting.
Section 8. Vote
Required. When a quorum is
present, the affirmative vote of the majority of 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, unless
the question is one upon which by express provisions of an
applicable law or of the Certificate of Incorporation a different
vote is required, in which case such express provision shall govern
and control the decision of such question. Where a separate vote by
class is required, the affirmative vote of the majority of shares
of such class present in person or represented by proxy at the
meeting shall be the act of such class, unless the question is one
upon which by express provisions of an applicable law or of the
Certificate of Incorporation a different vote is required, in which
case such express provision shall govern and control the decision
of such question.
Section 9. Voting
Rights. Except as otherwise
provided by the DGCL or by the Certificate of Incorporation or any
amendments thereto and subject to Section 3 of Article VI
hereof, every stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each
share of common stock held by such stockholder.
Section 10. 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 him, her or it by proxy. Every proxy must be signed by the
stockholder granting the proxy or by his, her or
its attorney-in-fact. No proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for
a longer period. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is
coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of
whether the interest with which it is coupled is an interest in the
stock itself or an interest in the Corporation
generally.
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Section 11. Action by Written
Consent. Unless otherwise
provided in the Certificate of Incorporation, any action required
to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or
special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or
consents in writing or electronic communication, setting forth the
action so taken and bearing the dates of signature of the
stockholders who signed the consent or consents, shall be signed by
the holders of outstanding stock having not less than a majority of
the shares entitled to vote, or, if greater, not less than the
minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the
Corporation by delivery to its registered office in the State of
Delaware, or the Corporation’s principal place of business,
or an officer or agent of the Corporation having custody of the
book or books in which proceedings of meetings of the stockholders
are recorded. Delivery made to the Corporation’s registered
office shall be by hand or by certified or registered mail, return
receipt requested provided, however, that no consent or consents
delivered by certified or registered mail shall be deemed delivered
until such consent or consents are actually received at the
registered office. All consents properly delivered in accordance
with this section shall be deemed to be recorded when so delivered.
No written or electronic consent shall be effective to take the
corporate action referred to therein unless, within sixty days of
the earliest dated consent delivered to the Corporation as required
by this section, written consents signed by the holders of a
sufficient number of shares to take such corporate action are so
recorded. 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. Any
action taken pursuant to such written or electronic consent or
consents of the stockholders shall have the same force and effect
as if taken by the stockholders at a meeting
thereof.
Article III
DIRECTORS
Section 1. General
Powers. The business and
affairs of the Corporation shall be managed by or under the
direction of the board of directors.
Section 2. Number, Election and
Term of Office. The number of
directors which shall constitute the board as of the effective date
of these by-laws shall be one or more, which number may
be increased or decreased from time to time by resolution of the
board of directors. The directors shall be elected by a plurality
of the votes of the shares present in person or represented by
proxy at the meeting and entitled to vote in the election of
directors. The directors shall be elected in this manner at the
annual meeting of the stockholders, except as provided in
Section 4 of this Article III. Each director elected shall
hold office until a successor is duly elected and qualified or
until his or her earlier death, resignation or removal as
hereinafter provided.
Section 3. Removal and
Resignation. Any director or
the entire board of directors may be removed at any time, with or
without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors. Whenever the holders
of any class or series are entitled to elect one or more directors
by the provisions of the Certificate of Incorporation, the
provisions of this section shall apply, in respect to the removal
without cause of a director or directors so elected, to the vote of
the holders of the outstanding shares of that class or series and
not to the vote of the outstanding shares as a whole. Any director
may resign at any time upon written notice to the
Corporation.
Section 4. Vacancies.
Except as otherwise provided by the Certificate of Incorporation or
any amendments thereto, vacancies and newly created directorships
resulting from any increase in the authorized number of directors
may be filled by a majority vote of the holders of the
Corporation’s outstanding stock entitled to vote thereon or
by a majority of the members of the board of directors. Each
director so chosen shall hold office until a successor is duly
elected and qualified or until his or her earlier death,
resignation or removal as herein provided.
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Section 5. Annual
Meetings. The annual meeting of
each newly elected board of directors shall be held without other
notice than these by-laws immediately after, and at the
same place as, the annual meeting of
stockholders.
Section 6. Other Meetings and
Notice. Regular meetings, other
than the annual meeting, of the board of directors may be held
without notice at such time and at such place as shall from time to
time be determined by resolution of the board of directors. Special
meetings of the board of directors may be called by or at the
request of the chief executive officer or president on at least 24
hours notice to each director, either personally, by telephone, by
mail, electronic mail, telefacsimile or other electronic
transmission; in like manner and on like notice the chief executive
officer or president must call a special meeting on the written
request of at least a majority of the
directors.
Section 7. Quorum, Required Vote
and Adjournment. A majority of
the number of directors then in office (without regard to any then
vacancies on the board of directors) shall constitute a quorum for
the transaction of business. The vote of a majority of the number
of votes of directors present at a meeting at which a quorum is
present shall be the act of the board of directors. If a quorum
shall not be present at any meeting of the board of directors, the
directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 8. Committees.
The board of directors may, by resolution passed by a majority of
the whole board of directors, designate one or more committees,
each committee to consist of one or more of the directors of the
Corporation, which to the extent provided in such resolution or
these by-laws shall have and may exercise the powers of
the board of directors in the management and affairs of the
Corporation except as otherwise limited by law. The board of
directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member
at any meeting of the committee. Such committee or committees shall
have such name or names as may be determined from time to time by
resolution adopted by the board of directors. Each committee shall
keep regular minutes of its meetings and report the same to the
board of directors when required.
Section 9. Committee
Rules. Each committee of the
board of directors may fix its own rules of procedure and shall
hold its meetings as provided by such rules, except as may
otherwise be provided by a resolution of the board of directors
designating such committee. Unless otherwise provided in such a
resolution, the presence of at least a majority of the directors
who are members of the committee shall be necessary to constitute a
quorum. In the event that a member and that member’s
alternate, if alternates are designated by the board of directors
as provided in Section 8 of this Article III, of such
committee is or are absent or disqualified, the member or members
thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may
unanimously appoint another member of the board of directors to act
at the meeting in place of any such absent or disqualified
member.
Section 10. Communications
Equipment. Members of the board
of directors or any committee thereof may participate in and act at
any meeting of such board or committee through the use of a
conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other,
and participation in the meeting pursuant to this section shall
constitute presence in person at the meeting.
Section 11. Waiver of Notice and
Presumption of Assent. Any
member of the board of directors or any committee thereof who is
present at a meeting shall be conclusively presumed to have waived
notice of such meeting except when such member attends 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. Such member shall be conclusively presumed to
have assented to any action taken unless his or her dissent shall
be entered in the minutes of the meeting or unless his or her
written dissent to such action shall be filed with the person
acting as the secretary of the meeting before the adjournment
thereof or shall be forwarded by registered mail to the secretary
of the Corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to any member who
voted in favor of such action.
Section 12. Action by Written
Consent. Unless otherwise
restricted by the Certificate of Incorporation, any action required
or permitted to be taken at any meeting of the board of directors,
or of any committee thereof, may be taken without a meeting if all
the then 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 in the minutes are maintained
in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
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Article IV
OFFICERS
Section 1. Number.
The officers of the Corporation shall be elected by the board of
directors and may consist of a chairman, if any is elected, a chief
executive officer, a president, one or more vice presidents, a
secretary, a treasurer, and such other officers and assistant
officers as may be deemed necessary or desirable by the board of
directors. Any number of offices may be held by the same person. In
its discretion, the board of directors may choose not to fill any
office for any period as it may deem advisable.
Section 2. Election and Term of
Office. The officers of the
Corporation shall be elected annually by the board of directors at
its first meeting held after each annual meeting of stockholders or
as soon thereafter as conveniently may be. Vacancies may be filled
or new offices created and filled at any meeting of the board of
directors. Each officer shall hold office until a successor is duly
elected and qualified or until his or her earlier death,
resignation or removal as hereinafter provided.
Section 3. Removal.
Any officer or agent elected by the board of directors may be
removed by the board of directors whenever in its judgment the best
interests of the Corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any,
of the person so removed.
Section 4. Vacancies.
Any vacancy occurring in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the board
of directors for the unexpired portion of the term by the board of
directors then in office.
Section 5. Compensation.
Compensation of all officers shall be fixed by the board of
directors, and no officer shall be prevented from receiving such
compensation by virtue of his or her also being a director of the
Corporation.
Section 6. The Chairman of the
Board. The Chairman of the
board of directors, if one shall have been elected, shall be a
member of the board of directors, may be an officer of the
Corporation, and, if present, shall preside at each meeting of the
board of directors or stockholders. He shall advise the chief
executive officer, and in the chief executive officer’s
absence, other officers of the Corporation, and shall perform such
other duties as may from time to time be assigned to him by the
board of directors.
Section 7. The Chief Executive
Officer. In the absence of the
Chairman of the board of directors or if a Chairman of the board of
directors shall have not been elected, the chief executive officer
shall preside at all meetings of the stockholders and board of
directors at which he or she is present; subject to the powers of
the board of directors, shall have general charge of the business,
affairs and property of the Corporation, and control over its
officers, agents and employees; and shall see that all orders and
resolutions of the board of directors are carried into effect. The
chief executive officer shall have such other powers and perform
such other duties as may be prescribed by the board of directors or
as may be provided in these by-laws.
Section 8. President; Vice
Presidents. The president
shall, in the absence or disability of the chief executive officer,
act with all of the powers and be subject to all of the
restrictions of the chief executive officer. The president shall
also perform such other duties and have such other powers as the
board of directors, the chief executive officer or
these by-laws may, from time to time, prescribe. The vice
president, if any, or if there shall be more than one, the vice
presidents in the order determined by the board of directors shall,
in the absence or disability of the president, act with all of the
powers and be subject to all the restrictions of the president. The
vice presidents shall also perform such other duties and have such
other powers as the board of directors, the president or
these by-laws may, from time to time,
prescribe.
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Section 9. The Secretary and
Assistant Secretaries. The
secretary shall attend all meetings of the board of directors, all
meetings of the committees thereof and all meetings of the
stockholders and record all the proceedings of the meetings in a
book or books to be kept for that purpose. Under the chief
executive officer’s supervision, the secretary shall give, or
cause to be given, all notices required to be given by
these by-laws or by law; shall have such powers and
perform such duties as the board of directors, the chief executive
officer or these by-laws may, from time to time,
prescribe; and shall have custody of the corporate seal of the
Corporation. The secretary, or an assistant secretary, shall have
authority to affix the corporate seal to any instrument requiring
it and when so affixed, it may be attested by his or her signature
or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix
the seal of the Corporation and to attest the affixing by his or
her signature. The assistant secretary, or if there be more than
one, the assistant secretaries in the order determined by the board
of directors, shall, in the absence or disability of the secretary,
perform the duties and exercise the powers of the secretary and
shall perform such other duties and have such other powers as the
board of directors, the chief executive officer, or secretary may,
from time to time, prescribe.
Section 10. The Treasurer and
Assistant Treasurer. The
treasurer shall have the custody of the corporate funds and
securities; shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation; shall deposit
all monies and other valuable effects in the name and to the credit
of the Corporation as may be ordered by the board of directors;
shall cause the funds of the Corporation to be disbursed when such
disbursements have been duly authorized, taking proper vouchers for
such disbursements; and shall render to the chief executive officer
and the board of directors, at its regular meeting or when the
board of directors so requires, an account of the Corporation;
shall have such powers and perform such duties as the board of
directors, the chief executive officer or
these by-laws may, from time to time, prescribe. If
required by the board of directors, the treasurer shall give the
Corporation a bond (which shall be rendered every six years) in
such sums and with such surety or sureties as shall be satisfactory
to the board of directors for the faithful performance of the
duties of the office of treasurer and for the restoration to the
Corporation, in case of death, resignation, retirement, or removal
from office, of all books, papers, vouchers, money, and other
property of whatever kind in the possession or under the control of
the treasurer belonging to the Corporation. The assistant
treasurer, or if there shall be more than one, the assistant
treasurers in the order determined by the board of directors, shall
in the absence or disability of the treasurer, perform the duties
and exercise the powers of the treasurer. The assistant treasurers
shall perform such other duties and have such other powers as the
board of directors, the chief executive officer, the president or
treasurer may, from time to time, prescribe.
Section 11. Other Officers,
Assistant Officers and Agents.
Officers, assistant officers and agents, if any, which officers may
include officers of any division of the Corporation, other than
those whose duties are provided for in
these by-laws, shall have such authority and perform such
duties as may from time to time be prescribed by resolution of the
board of directors.
Section 12. Absence or Disability
of Officers. In the case of the
absence or disability of any officer of the Corporation and of any
person hereby authorized to act in such officer’s place
during such officer’s absence or disability, the board of
directors may by resolution delegate the powers and duties of such
officer to any other officer or to any director, or to any other
person whom it may select.
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Article V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Nature of
Indemnity. Each person who was
or is a party or is threatened to be made a party to or is involved
in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(hereinafter a “proceeding”), by reason of the fact
that he or a person of whom he is the legal representative, is or
was a director or officer, of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee,
fiduciary, or agent of another Corporation or of a partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a director,
officer, employee, fiduciary or agent or in any other capacity
while serving at the request of the Corporation as a director,
officer, employee, fiduciary or agent, shall be indemnified and
held harmless by the Corporation to the fullest extent which it is
empowered to do so by the DGCL, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment) against all
expense, judgments, fines, amounts paid in settlement and other
liability and loss (including attorneys’ fees actually and
reasonably incurred by such person in connection with such
proceeding and such indemnification shall inure to the benefit of
his or her heirs, executors and administrators; provided, however,
that, except as provided in Section 2 hereof, the Corporation
shall indemnify any such person seeking indemnification in
connection with a proceeding initiated by such person only if such
proceeding was authorized by the board of directors of the
Corporation. The right to indemnification conferred in this Article
V shall be a contract right and, subject to Sections 2 and 5
hereof, shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of
its final disposition. The Corporation may, by action of its board
of directors, provide indemnification to employees and agents of
the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
Section 2. Procedure for
Indemnification of Directors and Officers. Any indemnification of a director or officer of
the Corporation under Section 1 of this Article V or advance
of expenses under Section 5 of this Article V shall be made
promptly, and in any event within 30 days, upon the written request
of the director or officer. If a determination by the Corporation
that the director or officer is entitled to indemnification
pursuant to this Article V is required, and the Corporation fails
to respond within sixty days to a written request for indemnity,
the Corporation shall be deemed to have approved the request. If
the Corporation denies a written request for indemnification or
advancing of expenses, in whole or in part, or if payment in full
pursuant to such request is not made within 30 days, the right to
indemnification or advances as granted by this Article V shall be
enforceable by the director or officer in any court of competent
jurisdiction. Such person’s costs and expenses incurred in
connection with successfully establishing his or her right to
indemnification, in whole or in part, in any such action shall also
be indemnified by the Corporation. It shall be a defense to any
such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any, has been
tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the DGCL for
the Corporation to indemnify the claimant for the amount claimed,
but the burden of such defense shall be on the Corporation. Neither
the failure of the Corporation (including its board of directors,
independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the DGCL, nor an actual determination by the Corporation
(including its board of directors, independent legal counsel, or
its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard
of conduct.
Section 3. Nonexclusivity of
Article V. The rights to
indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this
Article V shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision
of the Certificate of Incorporation, by-law, 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 serving at the request of the
Corporation while holding such office.
Section 4. Insurance.
The Corporation may purchase and maintain insurance on its own
behalf and on behalf of any person who is or was a director,
officer, employee, fiduciary, or agent of the Corporation or was
serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise against any liability asserted
against him or her and incurred by him or her in any such capacity,
whether or not the Corporation would have the power to indemnify
such person against such liability under this Article
V.
Section 5. Expenses.
Expenses incurred by any person described in Section 1 of this
Article V in defending a proceeding shall be paid by the
Corporation in advance of such proceeding’s final disposition
unless otherwise determined by the board of directors in the
specific case upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the
Corporation. Such expenses incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the board
of directors deems appropriate.
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Section 6. Employees and
Agents. Persons who are not
covered by the foregoing provisions of this Article V and who are
or were employees or agents of the Corporation, or who are or were
serving at the request of the Corporation as employees or agents of
another Corporation, partnership, joint venture, trust or other
enterprise, may be indemnified to the extent authorized at any time
or from time to time by the board of directors.
Section 7. Contract
Rights. The provisions of this
Article V shall be deemed to be a contract right between the
Corporation and each director or officer who serves in any such
capacity at any time while this Article V and the relevant
provisions of the DGCL or other applicable law are in effect, and
any repeal or modification of this Article V or any such law shall
not affect any rights or obligations then existing with respect to
any state of facts or proceeding then existing.
Section 8. Merger or
Consolidation. For purposes of
this Article V, references to “the Corporation” shall
include, in addition to the resulting Corporation, any constituent
Corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person
who is or was a director, officer, employeeor 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 this
Article V with respect to the resulting or surviving Corporation as
he or she would have with respect to such constituent Corporation
if its separate existence had continued.
Article VI
CERTIFICATES REPRESENTING STOCK
Section 1. Certificates;
Signatures. The shares of the
Corporation shall be represented by certificates or all of such
shares shall be uncertificated shares that may be evidenced by a
book entry system maintained by the Corporation, or a combination
of both. If shares are represented by certificates, such
certificates shall be in the form approved by the board of
directors. The certificates representing shares shall be signed by
or in the name of the Corporation by the Chairman of the board of
directors, or the Chief Executive Officer, the President or any
Vice President, and by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary or any other authorized
officer of the Corporation, representing the number of shares
registered in certificate form. Any and all signatures on any such
certificate may be facsimiles. In case any officer, transfer agent
or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue. The
name of the holder of record of the shares represented thereby,
with the number of such shares and the date of issue, shall be
entered on the books of the Corporation.
The
board of directors shall have power and authority to make all such
rules and regulations as it may deem expedient concerning the
issue, transfer and registration of certificates representing
shares of the Corporation.
Section 2. Fixing a Record Date
for Stockholder Meetings. In
order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the board of directors may fix a record date,
which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the board of
directors, and which record date shall not be more than sixty nor
less than ten days before the date of such meeting. If no record
date is fixed by the board of directors, the record date for
determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be the close of business on the next
day preceding the day on which notice is given, or if notice is
waived, at the close of business on the day next preceding the day
on which the meeting is held. A determination of stockholders of
record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
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Section 3. Fixing a Record Date
for Action by Written Consent.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a
meeting, the board of directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing
the record date is adopted by the board of directors, and which
date shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the board of
directors. If no record date has been fixed by the board of
directors, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no
prior action by the board of directors is required by statute,
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
Corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent
of the Corporation having custody of the book in which proceedings
of meetings of stockholders are recorded. Delivery made to the
Corporation’s registered office shall be by hand or by
certified or registered mail, return receipt requested. If no
record date has been fixed by the board of directors and prior
action by the board of directors is required by statute, the record
date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of
business on the day on which the board of directors adopts the
resolution taking such prior action.
Section 4. Fixing a Record Date
for Other Purposes. In order
that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment
or any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for
the purposes of any other lawful action, the board of directors may
fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and
which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business
on the day on which the board of directors adopts the resolution
relating thereto.
Section 5. Subscriptions for
Stock. Unless otherwise
provided for in the subscription agreement, subscriptions for
shares shall be paid in full at such time, or in such installments
and at such times, as shall be determined by the board of
directors. Any call made by the board of directors for payment on
subscriptions shall be uniform as to all shares of the same class
or as to all shares of the same series. In case of default in the
payment of any installment or call when such payment is due, the
Corporation may proceed to collect the amount due in the same
manner as any debt due the Corporation.
Section 6. Transfers of
Stock. Upon compliance with
provisions restricting the transfer or registration of transfer of
shares of stock, if any, shares of capital stock shall be
transferable on the books of the Corporation only by the holder of
record thereof in person, or by duly authorized attorney, upon
surrender and cancellation of certificates for a like number of
shares, properly endorsed, and the payment of all taxes due
thereon.
Section 7. Fractional
Shares. In no event will
holders of fractional shares be required to accept any
consideration in exchange for such shares other than consideration
which all holders of capital stock are required to
accept.
Section 8. Lost, Stolen or
Destroyed Certificates. The
Corporation may issue a new certificate of stock in place of any
certificate, theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the board of directors may require the
owner of any lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to
indemnify the Corporation 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 any such new
certificate.
Article VII
GENERAL PROVISIONS
Section 1. Dividends.
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 the capital stock, subject to the
provisions of the Certificate of Incorporation. Before payment of
any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property
of the Corporation, or any other purpose and the directors may
modify or abolish any such reserve in the manner in which it was
created.
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Section 2. Checks, Drafts or
Orders. All checks, drafts, or
other orders for the payment of money by or to the Corporation and
all notes and other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officer or officers, agent
or agents of the Corporation, and in such manner, as shall be
determined by resolution of the board of directors or a duly
authorized committee thereof.
Section 3. Contracts.
The board of directors may authorize any officer or officers, or
any agent or agents, of the Corporation to enter into any contract
or to execute and deliver any instrument in the name of and on
behalf of the Corporation, and such authority may be general or
confined to specific instances.
Section 4. Loans.
The Corporation may lend money to, or guarantee any obligation of,
or otherwise assist any officer or other employee of the
Corporation or of its subsidiary, including any officer or employee
who is a director of the Corporation or its subsidiary, whenever,
in the judgment of the directors, such loan, guaranty or assistance
may reasonably be expected to benefit the Corporation. The loan,
guaranty or other assistance may be with or without interest, and
may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of
shares of stock of the Corporation. Nothing in this section
contained shall be deemed to deny, limit or restrict the powers of
guaranty or warranty of the Corporation at common law or under any
statute.
Section 5. Fiscal
Year. The fiscal year of the
Corporation shall be fixed by resolution of the board of
directors.
Section 6. Corporate
Seal. The board of directors
may provide a corporate seal which shall be in the form of a circle
and shall have inscribed thereon the name of the Corporation and
the words “Corporate Seal, Delaware”. The seal may be
used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 7. Voting Securities
Owned By Corporation. Voting
securities in any other corporation held by the Corporation shall
be voted by the chief executive officer, unless the board of
directors specifically confers authority to vote with respect
thereto, which authority may be general or confined to specific
instances, upon some other person or officer. Any person authorized
to vote securities shall have the power to appoint proxies, with
general power of substitution.
Section 8. Inspection of Books
and Records. Any stockholder of
record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper
purpose the Corporation’s stock ledger, a list of its
stockholders, and its other books and records, and to make copies
or extracts therefrom. A proper purpose shall mean any purpose
reasonably related to such person’s interest as a
stockholder. In every instance where an attorney or other agent
shall be the person who seeks the right to inspection, the demand
under oath shall be accompanied by a power of attorney or such
other writing which authorizes the attorney or other agent to so
act on behalf of the stockholder. The demand under oath shall be
directed to the Corporation at its registered office in the State
of Delaware or at its principal place of
business.
Section 9. Section
Headings. Section headings in
these by-laws are for convenience of reference only and
shall not be given any substantive effect in limiting or otherwise
construing any provision herein.
Section 10. Inconsistent
Provisions. In the event that
any provision of these by-laws is or becomes inconsistent
with any provision of the Certificate of Incorporation, the DGCL or
any other applicable law, the provision of
these by-laws shall not be given any effect to the extent
of such inconsistency but shall otherwise be given full force and
effect.
Article VIII
AMENDMENTS
These by-laws may
be amended, altered, or repealed and new by-laws adopted
at any meeting of the board of directors by a majority vote. The
fact that the power to adopt, amend, alter, or repeal
the by-laws has been conferred upon the board of
directors shall not divest the stockholders of the same
powers.
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