SECOND AMENDED AND
RESTATED BYLAWS
OF
ELECTROCORE, INC.
(A DELAWARE CORPORATION)
November 13, 2024
TABLE OF CONTENTS
ELECTROCORE, INC.
SECOND AMENDED AND RESTATED BYLAWS
OFFICES
Section 1. Section 1Section 1. Registered Office. The registered office shall be established
and maintained at the office of The Corporation Service Company, in the City of
Wilmington, in the County of New Castle, in the State of Delaware, and said
corporation, or other such person or entity as the Board of Directors may from
time to time designate, shall be the registered agent of the corporation.
Section 2. Section 1. Section 2. Other Offices. The corporation shall also have and maintain
an office or principal place of business at such place as may be fixed by the
Board of Directors, and 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.
Section 3. Section 3. Corporate Seal. The Board of Directors may adopt a corporate
seal. If adopted, the corporate seal
shall consist of a die bearing the name of the corporation and the inscription,
“Corporate Seal-Delaware.” Said seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 4. Section 3. Section 4. Place of Meetings. Meetings of the stockholders of the
corporation may be held at such place, either within or without the State of
Delaware, as may be determined from time to time by the Board of Directors. The Board of Directors may, in its sole
discretion, determine that the meeting shall not be held at any place, but may
instead be held solely by means of remote communication as provided under the
General Corporation Law of the State of Delaware (the “DGCL”).
(a)
The
annual meeting of the stockholders of the corporation, for the purpose of
election of directors and for such other business as may properly come before
it, shall be held on such date and at such time as may be designated from time
to time by the Board of Directors.
Nominations of persons for election to the Board of Directors of the
corporation and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders: (i) pursuant to the
corporation’s notice of meeting of stockholders (with respect to business other
than nominations); (ii) brought specifically by or at the direction of the
Board of Directors; or (iii) by any stockholder of the corporation who was a
stockholder of record at the time of giving the stockholder’s notice provided
for in Section 5(b) below, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in this Section 5. For the avoidance of doubt, clause (iii) above
shall be the exclusive means for a stockholder to make nominations and submit
other business (other than matters properly included in the corporation’s
notice of meeting of stockholders and proxy statement under Rule 14a-8 under
the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules
and regulations thereunder) before an annual meeting of stockholders.
(b)
At
an annual meeting of the stockholders, only such business shall be conducted as
is a proper matter for stockholder action under Delaware law and as shall have
been properly brought before the meeting.
(1)
For
nominations for the election to the Board of Directors to be properly brought
before an annual meeting by a stockholder pursuant to clause (iii) of Section
5(a) of these Bylaws, the stockholder must deliver written notice to the
Secretary at the principal executive offices of the corporation on a timely
basis as set forth in Section 5(b)(3) and must update and supplement such
written notice on a timely basis as set forth in Section 5(c). Such stockholder’s notice shall set forth:
(A) as to each nominee such stockholder proposes to nominate at the meeting:
(1) the name, age, business address and residence address of such nominee, (2)
the principal occupation or employment of such nominee, (3) the class and
number of shares of each class of capital stock of the corporation which are
owned of record and beneficially by such nominee, (4) the date or dates on
which such shares were acquired and the investment intent of such acquisition,
and (5) such other information concerning such nominee as would be required to
be disclosed in a proxy statement soliciting proxies for the election of such
nominee as a director in an election contest (even if an election contest is
not involved), or that is otherwise required to be disclosed pursuant to
Section 14 of the 1934 Act and the rules and regulations promulgated thereunder
(including such person’s written consent to being named as a nominee and to
serving as a director if elected); (B) a representation that the stockholder or
Proponent (as defined below), if any, will or is part of a group that will (1)
solicit proxies from holders of the corporation’s outstanding capital stock
representing at least 67% of the voting power of shares of capital stock
entitled to vote on the election of directors, (2) include a statement to that
effect in its proxy statement and/or its form of proxy, (3) otherwise comply
with Rule 14a-19 under the 1934 Act and (4) provide the Secretary not less than
five (5) business days prior to the meeting or any adjournment or postponement
thereof, with reasonable documentary evidence (as determined by the Secretary
in good faith) that such stockholder and/or Proponent, if any, complied with
such representations; (C) a representation that each nominee such stockholder
proposes is currently in compliance with the Board of Director requirements set
forth under the corporation’s board-approved Corporate Governance Guidelines
(the “Corporate Guidelines”) and will remain in compliance with
the Corporate Guidelines throughout the duration of the nomination process, and
that such stockholder will update the applicable notice pursuant to Section
5(c) should any proposed nominee become noncompliant with the Corporate
Guidelines; and (D) the information required by Sections 5(b)(4) and 5(b)(5). The corporation may require any proposed
nominee to furnish such other information as it may reasonably require to
determine the eligibility of such proposed nominee to serve as an independent
director of the corporation or that could be material to a reasonable
stockholder’s understanding of the independence, or lack thereof, of such
proposed nominee.
(2)
Other
than proposals sought to be included in the corporation’s proxy materials
pursuant to Rule 14a-8 under the 1934 Act, for business other than nominations
for the election to the Board of Directors to be properly brought before an
annual meeting by a stockholder pursuant to clause (iii) of Section 5(a) of
these Bylaws, the stockholder must deliver written notice to the Secretary at
the principal executive offices of the corporation on a timely basis as set
forth in Section 5(b)(3), and must update and supplement such written notice on
a timely basis as set forth in Section 5(c).
Such stockholder’s notice shall set forth: (A) as to each matter such
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting, and any material interest (including any
anticipated benefit of such business to any Proponent other than solely as a
result of its ownership of the corporation’s capital stock, that is material to
any Proponent individually, or to the Proponents in the aggregate) in such
business of any Proponent; and (B) the information required by Sections 5(b)(4)
and 5(b)(5).
(3)
To
be timely, the written notice required by Section 5(b)(1) or 5(b)(2) must be
received by the Secretary at the principal executive offices of the corporation
not later than the close of business on the ninetieth (90th) day nor earlier
than the close of business on the one hundred twentieth (120th) day prior to
the first anniversary of the preceding year’s annual meeting; provided, however, that, subject to the
last sentence of this Section 5(b)(3), in the event that no annual meeting was
held during the preceding year or the date of the annual meeting is advanced
more than thirty (30) days prior to or delayed by more than thirty (30) days
after the anniversary of the preceding year’s annual meeting, notice by the
stockholder to be timely must be so received not earlier than the close of
business on the one hundred twentieth (120th) day prior to such annual meeting
and not later than the close of business on the later of the ninetieth (90th)
day prior to such annual meeting or the close of business on the tenth (10th)
day following the day on which public announcement of the date of such meeting
is first made. In no event shall an
adjournment or a postponement of an annual meeting for which notice has been
given, or for which the public announcement thereof has been made, commence a
new time period (or extend any time period) for the giving of a stockholder’s
notice as described above.
(4)
The
written notice required by Section 5(b)(1) or 5(b)(2) shall also set forth, as
of the date of the notice and as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made
(each, a “Proponent” and collectively, the “Proponents”): (A) the
name and address of each Proponent, as they appear on the corporation’s books;
(B) the class, series and number of shares of the corporation that are owned
beneficially and of record by each Proponent; (C) a description of all
agreements, arrangements or understandings (whether oral or in writing) with
respect to (i) such proposal or nomination, or (ii) any compensation or
payments to be paid to any such proposed nominee between or among any Proponent
and any of its affiliates or associates, and any others (including their names)
acting in concert, or otherwise under the agreement, arrangement or
understanding, with any of the foregoing pertaining to the nomination or other
business brought before the meeting of the stockholders; (D) in the case of a
stockholder nomination to the Board of Directors, the date of first contact
between the proposed director and the stockholder nominee with respect to (i)
the corporation and (ii) any proposed nomination or nominations of any person
for election to the Board of Directors; (E) a representation that the
Proponents are holders of record or beneficial owners, as the case may be, of
shares of the corporation entitled to vote at the meeting and intend to appear
in person or by proxy at the meeting to nominate the person or persons
specified in the notice (with respect to a notice under Section 5(b)(1)) or to
propose the business that is specified in the notice (with respect to a notice
under Section 5(b)(2)); (F) a representation as to whether the Proponents
intend to deliver a proxy statement and form of proxy to holders of a
sufficient number of the corporation’s voting shares to elect such nominee or
nominees (with respect to a notice under Section 5(b)(1)) or to carry such
proposal (with respect to a notice under Section 5(b)(2)); (G) identification
of the names and addresses of other stockholders, including any Proponent,
known by any of the nominating stockholders to support such nominations, and to
the extent known, the class and number of all shares of the corporation’s
capital stock owned beneficially or of record by such other stockholder or
beneficial owner(s); and (H) a description of all Derivative Transactions (as
defined below) by each Proponent during the previous twelve (12) month period,
including the date of the transactions and the class, series and number of
securities involved in, and the material economic terms of, such Derivative
Transactions.
(5)
To
be eligible to be a candidate for election as a director of the corporation at
an annual or special meeting under this Section 5, a candidate must be nominated
in a manner prescribed by this Section 5 and the candidate for nomination,
whether nominated by the Board of Directors or by a stockholder of record, must
have previously delivered (in accordance with the time period prescribed for
delivery in a notice to such candidate given by or on behalf of the Board of
Directors) to the Secretary at the principal executive offices of the
corporation, (i) a written questionnaire in the form provided by the Secretary
with respect to the background, qualifications, stock ownership and
independence of such proposed nominee, and such additional information with
respect to such proposed nominee as would be required to be provided by the
corporation if such proposed nominee were a participant in the solicitation of
proxies by the corporation in connection with such annual or special meeting
(which questionnaire shall be provided by the Secretary upon written request of
any stockholder of record identified by name within five (5) business days of
such written request).
(6)
Within
the time period specified in this Section 5 for providing written notice of the
applicable nomination, each nominee for election as a director of the
corporation must deliver to the Secretary a written representation and
agreement in the form required by the corporation (which form a stockholder
providing notice shall request in writing from the Secretary prior to
submitting such notice and which the Secretary shall provide to such
stockholder within ten (10) days after receiving such request) that such person
(i) intends, if elected as a director of the corporation, to serve as director
of the corporation for the term for which he or she is elected and (ii) in his
or her individual capacity, would be in compliance and will comply, if elected
as a director of the corporation, with all applicable publicly disclosed
confidentiality, corporate governance, conflict of interest, Regulation FD and
stock ownership and trading policies and guidelines of the corporation, all
applicable publicly disclosed codes of conduct and ethics of the corporation
and all other guidelines and policies of the corporation generally applicable
to directors (which other guidelines and policies will be provide to such
person within five (5) business days after the Secretary receives a written
request therefor from such person).
(c)
A
stockholder providing written notice required by Section 5(b)(1) or 5(b)(2)
shall update and supplement such notice in writing, if necessary, so that the
information provided or required to be provided in such notice is true and
correct in all material respects as of (i) the record date for the meeting and
(ii) the date that is five (5) business days prior to the meeting and, in the
event of any adjournment or postponement thereof, five (5) business days prior
to such adjourned or postponed meeting.
In the case of an update and supplement pursuant to clause (i) of this
Section 5(c), such update and supplement shall be received by the Secretary at
the principal executive offices of the corporation not later than five (5)
business days after the record date for the meeting. In the case of an update and supplement
pursuant to clause (ii) of this Section 5(c), such update and supplement shall
be received by the Secretary at the principal executive offices of the corporation
not later than two (2) business days prior to the date for the meeting, and, in
the event of any adjournment or postponement thereof, two (2) business days
prior to such adjourned or postponed meeting.
(d)
Notwithstanding
anything in Section 5(b)(3) to the contrary, in the event that the number of
directors in an Expiring Class (as defined below) is increased and there is no
public announcement of the appointment of a director to such class, or, if no
appointment was made, of the vacancy in such class, made by the corporation at
least ten (10) days before the last day a stockholder may deliver a notice of
nomination in accordance with Section 5(b)(3), a stockholder’s notice required
by this Section 5 and which complies with the requirements in Section 5(b)(1),
other than the timing requirements in Section 5(b)(3), shall also be considered
timely, but only with respect to nominees for any new positions in such
Expiring Class created by such increase, if it shall be received by the
Secretary at the principal executive offices of the corporation not later than
the close of business on the tenth (10th) day following the day on which such
public announcement is first made by the corporation. For purposes of this section, an “Expiring
Class” shall mean a class of directors whose term shall expire at the
next annual meeting of stockholders.
(e)
A
person shall not be eligible for election or re-election as a director unless
the person is nominated either in accordance with clause (ii) of Section 5(a),
or in accordance with clause (iii) of Section 5(a). Except as otherwise required by law, the
chairperson of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made,
or proposed, as the case may be, in accordance with the procedures set forth in
these Bylaws and, if any proposed nomination or business is not in compliance
with these Bylaws, or the Proponent does not act in accordance with the
representations in Sections 5(b)(4)(D) and 5(b)(4)(E), to declare that such
proposal or nomination shall not be presented for stockholder action at the
meeting and shall be disregarded, notwithstanding that proxies in respect of
such nominations or such business may have been solicited or received.
(f)
Notwithstanding
the foregoing provisions of this Section 5, in order to include information
with respect to a stockholder proposal in the proxy statement and form of proxy
for a stockholders’ meeting, a stockholder must also comply with all applicable
requirements of the 1934 Act and the rules and regulations thereunder. Nothing in these Bylaws shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
corporation’s proxy statement pursuant to Rule 14a-8 under the 1934 Act; provided, however, that any references
in these Bylaws to the 1934 Act or the rules and regulations thereunder are not
intended to and shall not limit the requirements applicable to proposals and/or
nominations to be considered pursuant to Section 5(a)(iii) of these Bylaws. Unless
otherwise required by law, if any stockholder giving notice provided by this
Section 5 provides notice pursuant to Rule 14a-19 and subsequently fails to
comply with its requirements, then the corporation shall disregard any proxies
or votes solicited for the stockholder’s nominee(s).
(g)
Any
stockholder directly or indirectly soliciting proxies from other stockholders
must use a proxy card color other than white, which shall be reserved for
exclusive use by the Board of Directors.
(h)
For
purposes of Sections 5 and 6,
(1)
“affiliates”
and “associates”
shall have the meanings set forth in Rule 405 under the Securities Act of 1933,
as amended (the “1933 Act”).
(2)
“Derivative
Transaction” means any agreement, arrangement, interest or
understanding entered into by, or on behalf or for the benefit of, any
Proponent or any of its affiliates or associates, whether record or beneficial:
(w) the value of which is
derived in whole or in part from the value of any class or series of shares or
other securities of the corporation,
(x) which otherwise provides any
direct or indirect opportunity to gain or share in any gain derived from a
change in the value of securities of the corporation,
(y) the effect or intent of
which is to mitigate loss, manage risk or benefit of security value or price
changes, or
(z) which provides the right to
vote or increase or decrease the voting power of, such Proponent, or any of its
affiliates or associates, with respect to any securities of the corporation,
which agreement, arrangement, interest or understanding may include,
without limitation, any option, warrant, debt position, note, bond, convertible
security, swap, stock appreciation right, short position, profit interest,
hedge, right to dividends, voting agreement, performance-related fee or
arrangement to borrow or lend shares (whether or not subject to payment,
settlement, exercise or conversion in any such class or series), and any
proportionate interest of such Proponent in the securities of the corporation
held by any general or limited partnership, or any limited liability company,
of which such Proponent is, directly or indirectly, a general partner or
managing member.
(3)
“public announcement” shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press, Business Wire, Globe Newswire or comparable national news
service or in a document publicly filed by the corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(a)
Special
meetings of the stockholders of the corporation may be called, for any purpose
as is a proper matter for stockholder action under Delaware law, by (i) the
Chairperson of the Board of Directors, (ii) the Chief Executive Officer (or if
there is no Chief Executive Officer, the President), or (iii) the Board of
Directors pursuant to a resolution approved by the affirmative vote of a
majority of the directors then in office, and may not be called by any other
person or persons.
(b)
The
Board of Directors shall determine the time and place, if any, of such special
meeting. Upon determination of the time
and place, if any, of the meeting, the Secretary shall cause a notice of
meeting to be given to the stockholders entitled to vote, in accordance with
the provisions of Section 7 of these Bylaws. No business may be transacted at such special meeting otherwise than
specified in the notice of meeting.
(c)
Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
corporation who is a stockholder of record at the time of giving notice
provided for in this paragraph, who shall be entitled to vote at the meeting
and who delivers written notice to the Secretary of the corporation setting
forth the information required by Section 5(b)(1). In the event the corporation calls a special
meeting of stockholders for the purpose of electing one or more directors to
the Board of Directors, any such stockholder of record may nominate a person or
persons (as the case may be), for election to such position(s) as specified in
the corporation’s notice of meeting, if written notice setting forth the
information required by Section 5(b)(1) of these Bylaws shall be received by
the Secretary at the principal executive offices of the corporation not later
than the close of business on the later of the ninetieth (90th) day prior to
such meeting or the tenth (10th) day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. The stockholder shall also update and
supplement such information as required under Section 5(c). In no event shall an adjournment or a postponement
of a special meeting for which notice has been given, or for which the public
announcement thereof has been made, commence a new time period for the giving
of a stockholder’s notice as described above.
(d)
Notwithstanding
the foregoing provisions of this Section 6, a stockholder must also comply with
all applicable requirements of the 1934 Act and the rules and regulations
thereunder with respect to matters set forth in this Section 6. Nothing in these Bylaws shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
corporation’s proxy statement pursuant to Rule 14a-8 under the 1934 Act; provided, however, that any references
in these Bylaws to the 1934 Act or the rules and regulations thereunder are not
intended to and shall not limit the requirements applicable to nominations for
the election to the Board of Directors to be considered pursuant to Section
6(c) of these Bylaws.
Section 7. Notice of Meetings. Except as otherwise provided by law, notice,
given in writing or by electronic transmission, of each meeting of stockholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting, such
notice to specify the place, if any, date and hour, in the case of special
meetings, the purpose or purposes of the meeting, 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 any such meeting. If mailed, notice is deemed given when
deposited in the U.S. mail, postage prepaid, directed to the stockholder at
such stockholder’s address as it appears on the records of the
corporation. Notice of the time, place,
if any, and purpose of any meeting of stockholders may be waived in writing,
signed by the person entitled to notice thereof, or by electronic transmission
by such person, either before or after such meeting, and will be waived by any
stockholder by his, her or its attendance thereat in person, by remote
communication, if applicable, or by proxy, except when the stockholder attends
a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Any stockholder so
waiving notice of such meeting shall be bound by the proceedings of any such
meeting in all respects as if due notice thereof had been given.
Section 8.
Section 8. Quorum. At all meetings of stockholders, except where
otherwise provided by statute or by the Certificate of Incorporation, or by
these Bylaws, the presence, in person, by remote communication, if applicable,
or by proxy duly authorized, of the holders of one-third of the voting power of
the outstanding shares of stock entitled to vote shall constitute a quorum for
the transaction of business. In the
absence of a quorum, any meeting of stockholders may be adjourned, from time to
time, either by the chairperson of the meeting or by vote of the holders of a
majority of the voting power of the shares represented thereat, but no other
business shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at which
a quorum is present, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum. Except as otherwise provided by statute
or by applicable stock exchange rules, or by the Certificate of Incorporation
or these Bylaws, in all matters other than the election of directors, the
affirmative vote of the majority of the voting power of the shares present in
person, by remote communication, if applicable, or represented by proxy at a
duly constituted meeting and entitled to vote generally on the subject matter
shall be the act of the stockholders. Except as otherwise provided by statute or by applicable stock exchange
rules, the Certificate of Incorporation or these Bylaws, directors shall be
elected by a plurality of the votes of the shares present in person, by remote
communication, if applicable, or represented by proxy at a duly constituted
meeting and entitled to vote generally on the election of directors. Where a separate vote by a class or classes
or series is required, except where otherwise provided by statute, or by
applicable stock exchange rules, or by the Certificate of Incorporation or
these Bylaws, one-third of the voting power of the outstanding shares of such
class or classes or series, present in person, by remote communication, if
applicable, or represented by proxy duly authorized, shall constitute a quorum
entitled to take action with respect to that vote on that matter. Except where otherwise provided by statute or
by applicable stock exchange rules or by the Certificate of Incorporation or
these Bylaws, the affirmative vote of the majority (plurality, in the case of
the election of directors) of shares of such class or classes or series present
in person, by remote communication, if applicable, or represented by proxy at a
duly constituted meeting shall be the act of such class or classes or series.
Section 9. Adjournment and Notice of Adjourned Meetings. Any meeting of stockholders, whether annual
or special, may be adjourned from time to time either by the chairperson of the
meeting or by the vote of a majority of the voting power of the shares present
in person, by remote communication, if applicable, or represented by proxy at
the meeting, although less than a quorum. When a meeting is adjourned to another time or place, if any, notice
need not be given of the adjourned meeting if the time and place, if any,
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 (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.
Section 10. Voting Rights. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the
stock records of the corporation on the record date, as provided in Section 12
of these Bylaws, shall be entitled to vote at any meeting of stockholders. Every person entitled to vote shall have the
right to do so either in person, by remote communication, if applicable, or by
an agent or agents authorized by a proxy granted in accordance with Delaware
law. An agent so appointed need not be a
stockholder. No proxy shall be voted
after three (3) years from its date of creation unless the proxy provides for a
longer period.
Section 11. Section 11. Joint Owners of Stock. If shares or other securities having voting
power stand of record in the names of two (2) or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety, or otherwise, or if two (2) or more persons have the
same fiduciary relationship respecting the same shares, unless the Secretary is
given written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship wherein it is
so provided, their acts with respect to voting shall have the following effect:
(a) if only one (1) votes, his or her act binds all; (b) if more than one (1)
votes, the act of the majority so voting binds all; (c) if more than one (1)
votes, but the vote is evenly split on any particular matter, each faction may
vote the securities in question proportionally, or may apply to the Delaware
Court of Chancery for relief as provided in the DGCL, Section 217(b). If the instrument filed with the Secretary
shows that any such tenancy is held in unequal interests, a majority or
even-split for the purpose of subsection (c) shall be a majority or even-split
in interest.
Section 12. List of Stockholders. The Secretary shall prepare and make, at
least ten (10) days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at said meeting, arranged in alphabetical
order, showing the address of each stockholder and the number and class 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, (a) 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 (b) 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 be open to examination of any
stockholder during the time of the meeting as provided by law.
Section 13. Action without Meeting. No action shall be taken by the stockholders
except at an annual or special meeting of stockholders called in accordance
with these Bylaws, and no action shall be taken by the stockholders by written
consent or by electronic transmission.
(a)
At
every meeting of stockholders, the Chairperson of the Board of Directors, or,
if a Chairperson has not been appointed or is absent, the President, or, if the
President is absent, a chairperson of the meeting chosen by a majority in
interest of the stockholders entitled to vote, present in person or by proxy,
shall act as chairperson. The Secretary,
or, in his or her absence, an Assistant Secretary directed to do so by the
President, shall act as secretary of the meeting.
(b)
The
Board of Directors of the corporation shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it shall deem
necessary, appropriate or convenient. Subject to such rules and regulations of the Board of Directors, if any,
the chairperson of the meeting shall have the right and authority to prescribe
such rules, regulations and procedures and to do all such acts as, in the
judgment of such chairperson, are necessary, appropriate or convenient for the
proper conduct of the meeting, including, without limitation, establishing an
agenda or order of business for the meeting, rules and procedures for
maintaining order at the meeting and the safety of those present, 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
chairperson shall permit, restrictions on entry to the meeting after the time
fixed for the commencement thereof, 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. The date and time of the opening and closing
of the polls for each matter upon which the stockholders will vote at the
meeting shall be announced at the meeting. Unless and to the extent determined by the Board of Directors or the
chairperson of the meeting, meetings of stockholders shall not be required to
be held in accordance with rules of parliamentary procedure.
Section 15. Number and Term of Office. The authorized number of directors of the
corporation shall be fixed in accordance with the Certificate of
Incorporation. Directors need not be
stockholders unless so required by the Certificate of Incorporation. If for any cause, the directors shall not
have been elected at an annual meeting, they may be elected as soon thereafter
as convenient at a special meeting of the stockholders called for that purpose
in the manner provided in these Bylaws.
Section 16. Powers. The powers of the corporation shall be
exercised, its business conducted and its property controlled by the Board of
Directors, except as may be otherwise provided by statute or by the Certificate
of Incorporation.
Section 17. Classes of Directors. Effective immediately following the closing
of the initial public offering pursuant to an effective registration statement
under the 1933 Act, covering the offer and sale of the Corporation’s common
stock to the public (the "Initial Public Offering") the
directors shall be divided into three classes as nearly equal in number as
practicable, hereby designated as Class I, Class II and Class III,
respectively. The Board of Directors is
authorized to assign members of the Board of Directors already in office to
such classes at the time the initial classification becomes effective. The term of office of the initial Class I
directors shall expire upon the election of directors at the first annual
meeting of stockholders following the closing of the Initial Public Offering;
the term of office of the initial Class II directors shall expire upon the
election of directors at the second annual meeting of stockholders following
the closing of the Initial Public Offering; and the term of office of the
initial Class III directors shall expire upon the election of directors at the
third annual meeting of stockholders following the closing of the Initial
Public Offering. At each annual meeting of stockholders, commencing with the
first annual meeting of stockholders following the closing of the Initial
Public Offering, each of the successors elected to replace the directors of a
class whose term shall have expired at such annual meeting shall be elected to
hold office until the third annual meeting of stockholders next succeeding his
or her election and until his or her respective successor shall have been duly
elected and qualified. Subject to the
rights of holders of any outstanding series of Preferred Stock with respect to
the election of directors, if the number of directors that constitutes the
Board of Directors is changed, any newly created directorships or decrease in
directorships shall be so apportioned by the Board of Directors among the
classes as to make all classes as nearly equal in number as is practicable,
provided that no decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director. Notwithstanding the
foregoing provisions of this paragraph, and subject to the rights of holders of
any series of Preferred Stock with respect to the election of directors, each
director shall serve until such director’s successor is duly elected and
qualified or until such director’s earlier death, resignation or removal.
Section 18. Vacancies. Unless otherwise provided in the Certificate
of Incorporation, and subject to the rights of the holders of any series of
Preferred Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by stockholders, be filled only
by the affirmative vote of a majority of the directors then in office, even
though less than a quorum of the Board of Directors, or by a sole remaining
director, and not by the stockholders, provided,
however, that whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by the provisions of
the Certificate of Incorporation, vacancies and newly created directorships of
such class or classes or series shall, unless the Board of Directors determines
by resolution that any such vacancies or newly created directorships shall be
filled by stockholders, be filled by a majority of the directors elected by
such class or classes or series thereof then in office, or by a sole remaining
director so elected, and not by the stockholders. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
director for which the vacancy was created or occurred and until such
director’s successor shall have been elected and qualified. A vacancy in the Board of Directors shall be
deemed to exist under this Bylaw in the case of the death, removal or
resignation of any director.
Section 19. Resignation. Any director may resign at any time by
delivering his or her notice in writing or by electronic transmission to the
Secretary, such resignation to specify whether it will be effective at a
particular time. If no such
specification is made, the resignation shall be deemed effective at the time of
delivery of the resignation to the Secretary. When one or more directors shall resign from the Board of Directors,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office for the unexpired portion of the term of the director whose place shall
be vacated and until his or her successor shall have been duly elected and
qualified.
(a)
Subject
to the rights of holders of any series of Preferred Stock to elect additional
directors under specified circumstances, neither the Board of Directors nor any
individual director may be removed without cause.
(b)
Subject
to any limitation imposed by law, any individual director or directors may be
removed with cause by the affirmative vote of the holders of at least sixty-six
and two-thirds percent (66 2/3%) of the voting power of all then outstanding
shares of capital stock of the corporation entitled to vote generally at an
election of directors, voting together as a single class.
(a)
Regular
Meetings. Unless otherwise restricted by
the Certificate of Incorporation, regular meetings of the Board of Directors
may be held at any time or date and at any place within or without the State of
Delaware which has been designated by the Board of Directors and publicized
among all directors, either orally or in writing, by telephone, including a
voice-messaging system or other system designed to record and communicate
messages, facsimile, telegraph or telex, or by electronic mail or other electronic
means. No further notice shall be
required for regular meetings of the Board of Directors.
(b)
Special
Meetings. Unless otherwise restricted by
the Certificate of Incorporation, special meetings of the Board of Directors
may be held at any time and place within or without the State of Delaware
whenever called by the Chairperson of the Board, the Chief Executive Officer or
a majority of the total number of authorized directors.
(c) Meetings
by Electronic Communications Equipment. Any member of the Board of Directors, or of any committee thereof, may
participate in a meeting by means of conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
(d)
Notice
of Special Meetings. Notice of the time
and place of all special meetings of the Board of Directors shall be given
orally or in writing, by telephone, including a voice messaging system or other
system or technology designed to record and communicate messages, facsimile,
telegraph or telex, or by electronic mail or other electronic means, during
normal business hours, at least twenty-four (24) hours before the date and time
of the meeting. If notice is sent by
U.S. mail, it shall be sent by first class mail, charges prepaid, at least
three (3) days before the date of the meeting.
Notice of any meeting may be waived in writing, or by electronic
transmission, at any time before or after the meeting and will be waived by any
director by attendance thereat, except when the director attends the meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
(e)
Waiver
of Notice. The transaction of all
business at any meeting of the Board of Directors, or any committee thereof,
however called or noticed, or wherever held, shall be as valid as though it had
been transacted at a meeting duly held after regular call and notice, if a
quorum be present and if, either before or after the meeting, each of the
directors not present who did not receive notice shall sign a written waiver of
notice or shall waive notice by electronic transmission. All such waivers shall be filed with the
corporate records or made a part of the minutes of the meeting.
(a)
Unless
the Certificate of Incorporation requires a greater number, and except with
respect to questions related to indemnification arising under Section 44 for
which a quorum shall be one-third of the exact number of directors fixed from
time to time, a quorum of the Board of Directors shall consist of a majority of
the exact number of directors fixed from time to time by the Board of Directors
in accordance with the Certificate of Incorporation; provided, however, at any meeting whether a quorum be present or
otherwise, a majority of the directors present may adjourn from time to time
until the time fixed for the next regular meeting of the Board of Directors,
without notice other than by announcement at the meeting.
(b)
At
each meeting of the Board of Directors at which a quorum is present, all
questions and business shall be determined by the affirmative vote of a
majority of the directors present, unless a different vote be required by law,
the Certificate of Incorporation or these Bylaws.
Section 23. 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 may be taken without a meeting, if all members of the Board of
Directors or committee, as the case may be, consent thereto in writing or by
electronic transmission, and such writing or writings or transmission or
transmissions are filed with the minutes of proceedings of the Board of
Directors or committee. Such filing
shall be in paper form if the minutes are maintained in paper form and shall be
in electronic form if the minutes are maintained in electronic form.
Section 24. Fees and Compensation. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors,
including, if so approved, by resolution of the Board of Directors, a fixed sum
and expenses of attendance, if any, for attendance at each regular or special
meeting of the Board of Directors and at any meeting of a committee of the
Board of Directors. Nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity as an officer, agent, employee, or otherwise
and receiving compensation therefor. Directors need not be stockholders of the Corporation. No person shall qualify for service as a
director of the Corporation if he or she is a party to any compensatory,
payment or other financial agreement, arrangement or understanding with any
person or entity other than the Corporation, or has received any such
compensation or other payment from any person or entity other than the
Corporation, in each case in connection with candidacy or service as a director
of the Corporation; provided that agreements providing only for indemnification
and/or reimbursement of out-of-pocket expenses in connection with candidacy as
director (but not, for the avoidance of doubt, in connection with service as a
director) and any pre-existing employment agreement a candidate has with his or
her employer (not entered into in contemplation of the employer’s investment in
the Corporation or such employee’s candidacy as a director) shall not be
disqualifying under this Section 24; and provided, further, that agreements,
arrangements, understandings, compensation or other payments in connection with
candidacy or service as a director of the Corporation shall not be
disqualifying under this Section 24 if the Board in its discretion makes an
affirmative determination that the director satisfies applicable regulatory and
stock exchange listing requirements to be an independent director of the
Corporation and that the director is free of any other relationship (with the Corporation
and its consolidated subsidiaries (collectively, the "Company") or any
stockholder or otherwise) that would interfere with the exercise of independent
judgment by such director.
(a)
Executive
Committee. The Board of Directors may
appoint an Executive Committee to consist of one (1) or more members of the
Board of Directors. The Executive
Committee, to the extent permitted by law and provided in the resolution of the
Board of Directors shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to (i) approving or adopting, or recommending to the
stockholders, any action or matter (other than the election or removal of
directors) expressly required by the DGCL to be submitted to stockholders for
approval, or (ii) adopting, amending or repealing any Bylaw of the corporation.
(b)
Other
Committees. The Board of Directors may,
from time to time, appoint such other committees as may be permitted by
law. Such other committees appointed by
the Board of Directors shall consist of one (1) or more members of the Board of
Directors and shall have such powers and perform such duties as may be
prescribed by the resolution or resolutions creating such committees, but in no
event shall any such committee have the powers denied to the Executive
Committee in these Bylaws.
(c)
Term. The Board of Directors, subject to any
requirements of any outstanding series of Preferred Stock and the provisions of
subsections (a) or (b) of this Section 25, may at any time increase or decrease
the number of members of a committee or terminate the existence of a
committee. The membership of a committee
member shall terminate on the date of his or her death or voluntary resignation
from the committee or from the Board of Directors. The Board of Directors may at any time for
any reason remove any individual committee member and the Board of Directors
may fill any committee vacancy created by death, resignation, removal or
increase in the number of members of the committee. 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, and, in
addition, in the absence or disqualification of any member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
(d)
Meetings. Unless the Board of Directors shall otherwise
provide, regular meetings of the Executive Committee or any other committee
appointed pursuant to this Section 25 shall be held at such times and places as
are determined by the Board of Directors, or by any such committee, and when
notice thereof has been given to each member of such committee, no further
notice of such regular meetings need be given thereafter. Special meetings of any such committee may be
held at any place which has been determined from time to time by such
committee, and may be called by any director who is a member of such committee,
upon notice to the members of such committee of the time and place of such
special meeting given in the manner provided for the giving of notice to
members of the Board of Directors of the time and place of special meetings of
the Board of Directors. Notice of any
special meeting of any committee may be waived in writing or by electronic
transmission at any time before or after the meeting and will be waived by any
director by attendance thereat, except when the director attends such special
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called
or convened. Unless otherwise provided
by the Board of Directors in the resolutions authorizing the creation of the
committee, a majority of the authorized number of members of any such committee
shall constitute a quorum for the transaction of business, and the act of a
majority of those present at any meeting at which a quorum is present shall be
the act of such committee.
(a) The
Chairperson of the Board of Directors, if appointed and when present, shall
preside at all meetings of the stockholders and the Board of Directors. The
Chairperson of the Board of Directors shall perform other duties commonly
incident to the office and shall also perform such other duties and have such
other powers, as the Board of Directors shall designate from time to time.
(b) The
Chairperson of the Board of Directors, or if the Chairperson is not an
independent director, one of the independent directors, may be designated by
the Board of Directors as lead independent director to serve until replaced by
the Board of Directors (the “Lead Independent Director”). The
Lead Independent Director will perform such other duties as may be established
or delegated by the Board of Directors.
Section 27 . Organization. At every meeting of the
directors, the Chairperson of the Board of Directors, or, if a Chairperson has
not been appointed or is absent, the Lead Independent Director, or if the Lead
Independent Director has not been appointed or is absent, the Chief Executive
Officer (if a director), or, if a Chief Executive Officer is absent, the
President (if a director), or if the President is absent, the most senior Vice
President (if a director), or, in the absence of any such person, a chairperson
of the meeting chosen by a majority of the directors present, shall preside
over the meeting. The Secretary, or in
his or her absence, any Assistant Secretary or other officer, director or other
person directed to do so by the person presiding over the meeting, shall act as
secretary of the meeting.
Section 28. Officers Designated. The officers of the corporation shall
include, if and when designated by the Board of Directors, the Chairperson of
the Board of Directors (provided that notwithstanding anything to the contrary
contained in these Bylaws, the Chairperson of the Board of Directors shall not
be deemed an officer of the corporation unless so designated by the Board of
Directors), the Chief Executive Officer, the President, one or more Vice
Presidents, the Secretary, the Chief Financial Officer and the Treasurer. The Board of Directors may also appoint one
or more Assistant Secretaries and Assistant Treasurers and such other officers
and agents with such powers and duties as it shall deem necessary. The Board of Directors may assign such
additional titles to one or more of the officers as it shall deem
appropriate. Any one person may hold any
number of offices of the corporation at any one time unless specifically
prohibited therefrom by law. The
salaries and other compensation of the officers of the corporation shall be fixed
by or in the manner designated by the Board of Directors.
(a)
General. All officers shall hold office at the
pleasure of the Board of Directors and until their successors shall have been
duly elected and qualified, unless sooner removed. Any officer elected or appointed by the Board
of Directors may be removed at any time by the Board of Directors. If the office of any officer becomes vacant
for any reason, the vacancy may be filled by the Board of Directors.
(b)
Duties
of Chief Executive Officer. The Chief
Executive Officer shall preside at all meetings of the stockholders and at all
meetings of the Board of Directors (if a director), unless the Chairperson of
the Board of Directors or the Lead Independent Director has been appointed and
is present. Unless an officer has been
appointed Chief Executive Officer of the corporation, the President shall be
the chief executive officer of the corporation and shall, subject to the
control of the Board of Directors, have general supervision, direction and
control of the business and officers of the corporation. To the extent that a Chief Executive Officer
has been appointed and no President has been appointed, all references in these
Bylaws to the President shall be deemed references to the Chief Executive
Officer. The Chief Executive Officer
shall perform other duties commonly incident to the office and shall also
perform such other duties and have such other powers, as the Board of Directors
shall designate from time to time.
(c)
Duties
of President. The President shall
preside at all meetings of the stockholders and at all meetings of the Board of
Directors, unless the Chairperson of the Board of Directors or the Chief
Executive Officer has been appointed and is present. Unless another officer has been appointed
Chief Executive Officer of the corporation, the President shall be the chief
executive officer of the corporation and shall, subject to the control of the
Board of Directors, have general supervision, direction and control of the
business and officers of the corporation. The President shall perform other duties commonly incident to the office
and shall also perform such other duties and have such other powers, as the
Board of Directors shall designate from time to time.
(d)
Duties
of Vice Presidents. The Vice Presidents
may assume and perform the duties of the President in the absence or disability
of the President or whenever the office of President is vacant. The Vice Presidents shall perform other
duties commonly incident to their office and shall also perform such other
duties and have such other powers as the Board of Directors or the Chief
Executive Officer, or, if the Chief Executive Officer has not been appointed or
is absent, the President shall designate from time to time.
(e)
Duties
of Secretary. The Secretary shall attend
all meetings of the stockholders and of the Board of Directors and shall record
all acts and proceedings thereof in the minute book of the corporation. The Secretary shall give notice in conformity
with these Bylaws of all meetings of the stockholders and of all meetings of
the Board of Directors and any committee thereof requiring notice. The Secretary shall perform all other duties
provided for in these Bylaws and other duties commonly incident to the office
and shall also perform such other duties and have such other powers, as the
Board of Directors shall designate from time to time. The President may direct any Assistant
Secretary or other officer to assume and perform the duties of the Secretary in
the absence or disability of the Secretary, and each Assistant Secretary shall
perform other duties commonly incident to the office and shall also perform
such other duties and have such other powers as the Board of Directors or the
President shall designate from time to time.
(f)
Duties
of Chief Financial Officer. The Chief
Financial Officer shall keep or cause to be kept the books of account of the
corporation in a thorough and proper manner and shall render statements of the
financial affairs of the corporation in such form and as often as required by
the Board of Directors or the President. The Chief Financial Officer, subject to the order of the Board of
Directors, shall have the custody of all funds and securities of the
corporation. The Chief Financial Officer
shall perform other duties commonly incident to the office and shall also
perform such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time. To the extent that a Chief Financial Officer
has been appointed and no Treasurer has been appointed, all references in these
Bylaws to the Treasurer shall be deemed references to the Chief Financial
Officer. The President may direct the Treasurer,
if any, or any Assistant Treasurer, or the Controller or any Assistant
Controller to assume and perform the duties of the Chief Financial Officer in
the absence or disability of the Chief Financial Officer, and each Treasurer
and Assistant Treasurer and each Controller and Assistant Controller shall
perform other duties commonly incident to the office and shall also perform
such other duties and have such other powers as the Board of Directors or the
President shall designate from time to time.
(g)
Duties
of Treasurer. Unless another officer has
been appointed Chief Financial Officer of the corporation, the Treasurer shall
be the chief financial officer of the corporation and shall keep or cause to be
kept the books of account of the corporation in a thorough and proper manner
and shall render statements of the financial affairs of the corporation in such
form and as often as required by the Board of Directors or the President, and,
subject to the order of the Board of Directors, shall have the custody of all
funds and securities of the corporation. The Treasurer shall perform other duties commonly incident to the office
and shall also perform such other duties and have such other powers as the
Board of Directors or the President shall designate from time to time.
Section 30. Delegation of Authority. The Board of Directors may from time to time
delegate the powers or duties of any officer to any other officer or agent,
notwithstanding any provision hereof.
Section 31. Resignations. Any officer may resign at any time by giving
notice in writing or by electronic transmission to the Board of Directors or to
the President or to the Secretary. Any
such resignation shall be effective when received by the person or persons to
whom such notice is given, unless a later time is specified therein, in which
event the resignation shall become effective at such later time. Unless otherwise specified in such notice,
the acceptance of any such resignation shall not be necessary to make it effective. Any resignation shall be without prejudice to
the rights, if any, of the corporation under any contract with the resigning
officer.
Section 32. Removal. Any officer may be removed from office at any
time, either with or without cause, by the affirmative vote of a majority of
the directors in office at the time, or by the unanimous written consent of the
directors in office at the time, or by any committee or by the Chief Executive
Officer or by other superior officers upon whom such power of removal may have
been conferred by the Board of Directors.
Section 33. Execution of Corporate Instruments. The Board of Directors may, in its
discretion, determine the method and designate the signatory officer or
officers, or other person or persons, to execute on behalf of the corporation
any corporate instrument or document, or to sign on behalf of the corporation
the corporate name without limitation, or to enter into contracts on behalf of
the corporation, except where otherwise provided by law or these Bylaws, and
such execution or signature shall be binding upon the corporation.
All checks and
drafts drawn on banks or other depositaries on funds to the credit of the
corporation or in special accounts of the corporation shall be signed by such
person or persons as the Board of Directors shall authorize so to do.
Unless authorized
or ratified by the Board of Directors or within the agency power of an officer,
no officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
Section 34.
Section 34. Voting Of Securities Owned By the Corporation. All stock and other securities of other
corporations owned or held by the corporation for itself, or for other parties
in any capacity, shall be voted, and all proxies with respect thereto shall be
executed, by the person authorized so to do by resolution of the Board of
Directors, or, in the absence of such authorization, by the Chairperson of the
Board of Directors, the Chief Executive Officer, the President, or any Vice
President.
Section 35. Form and Execution of Certificates. The shares of the corporation shall be
represented by certificates, or shall be uncertificated if so provided by
resolution or resolutions of the Board of Directors. Certificates for the shares of stock, if any,
shall be in such form as is consistent with the Certificate of Incorporation
and applicable law. Every holder of
stock in the corporation represented by certificate shall be entitled to have a
certificate signed by or in the name of the corporation by the Chairperson of
the Board of Directors, or the President or any Vice President and by the
Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary,
certifying the number of shares owned by him in the corporation. Any or all of the signatures on the
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 with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Section 36. Lost Certificates. A new certificate or certificates shall 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. The
corporation may require, as a condition precedent to the issuance of a new
certificate or certificates, the owner of such lost, stolen, or destroyed
certificate or certificates, or the owner’s legal representative, to agree to
indemnify the corporation in such manner as it shall require or to give the
corporation a surety bond in such form and amount as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen, or destroyed.
(a)
Transfers
of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, and, in
the case of stock represented by certificate, upon the surrender of a properly
endorsed certificate or certificates for a like number of shares.
(b)
The
corporation shall have power to enter into and perform any agreement with any
number of stockholders of any one or more classes of stock of the corporation
to restrict the transfer of shares of stock of the corporation of any one or
more classes owned by such stockholders in any manner not prohibited by the
DGCL.
(a)
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, subject to applicable law, not be
more than sixty (60) nor less than ten (10) 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 at the close of
business on the day next preceding the day on which notice is given, or if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b)
In
order that the corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which 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 (60) 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 39.
Section 39. Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
Section 40. Execution of Other Securities. All bonds, debentures and other corporate
securities of the corporation, other than stock certificates (covered in
Section 35), may be signed by the Chairperson of the Board of Directors, the
President or any Vice President, or such other person as may be authorized by
the Board of Directors, and the corporate seal impressed thereon or a facsimile
of such seal imprinted thereon and attested by the signature of the Secretary
or an Assistant Secretary, or the Chief Financial Officer or Treasurer or an
Assistant Treasurer; provided, however,
that where any such bond, debenture or other corporate security shall be
authenticated by the manual signature, or where permissible facsimile
signature, of a trustee under an indenture pursuant to which such bond,
debenture or other corporate security shall be issued, the signatures of the
persons signing and attesting the corporate seal on such bond, debenture or
other corporate security may be the imprinted facsimile of the signatures of
such persons. Interest coupons
appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an
Assistant Treasurer of the corporation or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon the facsimile
signature of such person. In case any
officer who shall have signed or attested any bond, debenture or other
corporate security, or whose facsimile signature shall appear thereon or on any
such interest coupon, shall have ceased to be such officer before the bond,
debenture or other corporate security so signed or attested shall have been
delivered, such bond, debenture or other corporate security nevertheless may be
adopted by the corporation and issued and delivered as though the person who
signed the same or whose facsimile signature shall have been used thereon had
not ceased to be such officer of the corporation.
Section 41. Declaration of Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation and
applicable law, if any, may be declared by the Board of Directors pursuant to
law at any regular or special meeting. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the Certificate of Incorporation and
applicable law.
Section 42. Dividend 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 their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other 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.
Section 43. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
(a) (a) Directors and Executive Officers. The corporation shall indemnify its directors
and executive officers (for the purposes of this Article XI, “executive
officers” shall have the meaning defined in Rule 3b-7 promulgated under
the 1934 Act) to the fullest extent not prohibited by the DGCL or any other
applicable law; provided, however,
that the corporation may modify the extent of such indemnification by
individual contracts with its directors and executive officers; and, provided,
further, that the corporation shall not be required to indemnify any director
or executive officer in connection with any proceeding (or part thereof)
initiated by such person unless (i) such indemnification is expressly required
to be made by law, (ii) the proceeding was authorized by the Board of Directors
of the corporation, (iii) such indemnification is provided by the corporation,
in its sole discretion, pursuant to the powers vested in the corporation under
the DGCL or any other applicable law or (iv) such indemnification is required
to be made under subsection (d).
(b) (b) Other Officers, Employees and Other Agents. The corporation shall have power to indemnify
its non-executive officers, employees and other agents as set forth in the DGCL
or any other applicable law. The Board
of Directors shall have the power to delegate responsibility for determining
whether any such non-executive officer, employee or other agent shall be given
indemnification to such person or persons as the Board of Directors may
designate.
(c) (c) Expenses. The corporation shall advance to any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director or executive officer of the corporation, or is or was serving at the
request of the corporation as a director or executive officer of another
corporation, partnership, joint venture, trust or other enterprise, prior to
the final disposition of the proceeding, promptly following request therefor,
all expenses incurred by any director or executive officer in connection with
such proceeding; provided, however,
that, if the DGCL requires, an advancement of expenses incurred by a director
or executive officer in his or her capacity as a director or executive officer
(and not in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf
of such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision (hereinafter a "final adjudication")
from which there is no further right to appeal that such indemnitee is not
entitled to be indemnified for such expenses under this section or otherwise.
(d) (d) Enforcement. Without the necessity of entering into an
express contract, all rights to indemnification and advances to directors and
executive officers under this Bylaw shall be deemed to be contractual rights
and be effective to the same extent and as if provided for in a contract
between the corporation and the director or executive officer, as
applicable. Any right to indemnification
or advances granted by this Bylaw to a director or executive officer shall be
enforceable by or on behalf of the person holding such right in any court of
competent jurisdiction if (i) the claim for indemnification or advances is
denied, in whole or in part, or (ii) no disposition of such claim is made
within ninety (90) days of request therefor.
To the extent permitted by law, the claimant in such enforcement action,
if successful in whole or in part, shall be entitled to be paid also the
expense of prosecuting the claim. In
connection with any claim for indemnification, the corporation shall be
entitled to raise as a defense to any such action that the claimant has not met
the standards of conduct that make it permissible under the DGCL or any other
applicable law for the corporation to indemnify the claimant for the amount
claimed. 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 has met the applicable standard of conduct set forth in the DGCL or any
other applicable law, 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 claimant has not met the applicable
standard of conduct. In any suit brought
by a director or executive officer to enforce a right to indemnification or to
an advancement of expenses hereunder, the burden of proving that the director
or executive officer is not entitled to be indemnified, or to such advancement
of expenses, under this section or otherwise shall be on the corporation.
(e) (e) Non-Exclusivity of Rights. The rights conferred on any person by this
Bylaw shall not be exclusive of any other right which such person may have or
hereafter acquire under any applicable statute, provision of the Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity and
as to action in another capacity while holding office. The corporation is specifically authorized to
enter into individual contracts with any or all of its directors, officers,
employees or agents respecting indemnification and advances, to the fullest
extent not prohibited by the DGCL, or by any other applicable law.
(f) Survival of Rights. The rights conferred on any person by this
Bylaw shall continue as to a person who has ceased to be a director, officer,
employee or other agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
(g) (g) Insurance. To the fullest extent permitted by the DGCL
or any other applicable law, the corporation, upon approval by the Board of
Directors, may purchase insurance on behalf of any person required or permitted
to be indemnified pursuant to this section.
(h) (h) Amendments. Any repeal or modification of this section
shall only be prospective and shall not affect the rights under this Bylaw in
effect at the time of the alleged occurrence of any action or omission to act
that is the cause of any proceeding against any agent of the corporation.
(i) (i) Saving Clause. If this Bylaw or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and executive officer to
the full extent not prohibited by any applicable portion of this section that
shall not have been invalidated, or by any other applicable law. If this section shall be invalid due to the
application of the indemnification provisions of another jurisdiction, then the
corporation shall indemnify each director and executive officer to the full
extent under any other applicable law.
(j) (j) Certain Definitions. For the purposes of this Bylaw, the following
definitions shall apply:
(1)
The
term “proceeding” shall be broadly construed and shall include, without
limitation, the investigation, preparation, prosecution, defense, settlement,
arbitration and appeal of, and the giving of testimony in, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative.
(2)
The
term “expenses” shall be broadly construed and shall include, without
limitation, court costs, attorneys’ fees, witness fees, fines, amounts paid in
settlement or judgment and any other costs and expenses of any nature or kind
incurred in connection with any proceeding.
(3)
The
term 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, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this
section with respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate existence had
continued.
(4)
References
to a “director,” “executive officer,” “officer,” “employee,” or “agent” of the
corporation shall include, without limitation, situations where such person is
serving at the request of the corporation as, respectively, a director,
executive officer, officer, employee, trustee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(5)
References
to “other enterprises” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to “serving at the request of the
corporation” shall include any service as a director, officer, employee or
agent of the corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner “not opposed to the best interests of the corporation”
as referred to in this section.
ARTICLE XII
NOTICES
Section 45. Notices.
(a) (a) Notice To Stockholders. Written notice to stockholders of stockholder
meetings shall be given as provided in Section 7 herein. Without limiting the manner by which notice
may otherwise be given effectively to stockholders under any agreement or
contract with such stockholder, and except as otherwise required by law,
written notice to stockholders for purposes other than stockholder meetings may
be sent by U.S. mail or nationally recognized overnight courier, or by
facsimile, telegraph or telex or by electronic mail or other electronic
means.
(b) (b) Notice To Directors. Any notice required to be given to any
director may be given by the method stated in subsection (a), or as otherwise
provided in these Bylaws, with notice other than one which is delivered
personally to be sent to such address as such director shall have filed in
writing with the Secretary, or, in the absence of such filing, to the last
known address of such director.
(c) (c) Affidavit Of Mailing. An affidavit of mailing, executed by a duly
authorized and competent employee of the corporation or its transfer agent
appointed with respect to the class of stock affected, or other agent,
specifying the name and address or the names and addresses of the stockholder
or stockholders, or director or directors, to whom any such notice or notices
was or were given, and the time and method of giving the same, shall in the
absence of fraud, be prima facie evidence of the facts therein contained.
(d) (d) Methods of Notice. It shall not be necessary that the same
method of giving notice be employed in respect of all recipients of notice, but
one permissible method may be employed in respect of any one or more, and any
other permissible method or methods may be employed in respect of any other or
others.
(e) (e) Notice To Person With Whom Communication Is
Unlawful. Whenever notice is required to be given,
under any provision of law or of the Certificate of Incorporation or Bylaws of
the corporation, to any person with whom communication is unlawful, the giving
of such notice to such person shall not be required and there shall be no duty
to apply to any governmental authority or agency for a license or permit to
give such notice to such person. Any
action or meeting which shall be taken or held without notice to any such
person with whom communication is unlawful shall have the same force and effect
as if such notice had been duly given. In the event that the action taken by the corporation is such as to
require the filing of a certificate under any provision of the DGCL, the
certificate shall state, if such is the fact and if notice is required, that
notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
(f) (f) Notice to Stockholders Sharing an Address. Except as otherwise prohibited under DGCL,
any notice given under the provisions of DGCL, the Certificate of Incorporation
or these Bylaws shall be effective if given by a single written notice to
stockholders who share an address if consented to by the stockholders at that
address to whom such notice is given. Such consent shall have been deemed to have been given if such
stockholder fails to object in writing to the corporation within sixty (60)
days of having been given notice by the corporation of its intention to send
the single notice. Any consent shall be
revocable by the stockholder by written notice to the corporation.
Section 46. Bylaw Amendments. Subject to the limitations set forth in
Section 44(h) of these Bylaws or the provisions of the Certificate of
Incorporation, the Board of Directors is expressly empowered to adopt, amend or
repeal these Bylaws of the corporation. Any adoption, amendment or repeal of these Bylaws of the corporation by
the Board of Directors shall require the approval of a majority of the
authorized number of directors. The
stockholders also shall have power to adopt, amend or repeal these Bylaws of
the corporation; provided, however,
that, in addition to any vote of the holders of any class or series of stock of
the corporation required by law or by the Certificate of Incorporation, such
action by stockholders shall require the affirmative vote of the holders of at
least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of
the then-outstanding shares of the capital stock of the corporation entitled to
vote generally in the election of directors, voting together as a single class.
Section 47. Loans to Officers or Employees. Except as otherwise prohibited by applicable
law, 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
subsidiaries, including any officer or employee who is a director of the
corporation or its subsidiaries, whenever, in the judgment of the Board of
Directors, such loan, guarantee or assistance may reasonably be expected to
benefit the corporation. The loan,
guarantee 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 these Bylaws
shall be deemed to deny, limit or restrict the powers of guaranty or warranty
of the corporation at common law or under any statute.