EXHIBIT 3.4
AMENDED AND RESTATED BYLAWS
OF
GTX, INC.
(A DELAWARE CORPORATION)
AMENDED AND RESTATED BYLAWS
TABLE OF CONTENTS
PAGE
ARTICLE I OFFICES................................................................................ 1
Section 1.1 Registered Office.............................................................. 1
Section 1.2 Other Offices.................................................................. 1
ARTICLE II CORPORATE SEAL......................................................................... 1
Section 2.1 Corporate Seal................................................................. 1
ARTICLE III STOCKHOLDERS' MEETINGS................................................................. 1
Section 3.1 Place Of Meetings.............................................................. 1
Section 3.2 Annual Meetings................................................................ 1
Section 3.3 Special Meetings............................................................... 4
Section 3.4 Notice Of Meetings............................................................. 5
Section 3.5 Quorum......................................................................... 5
Section 3.6 Adjournment And Notice Of Adjourned Meetings................................... 6
Section 3.7 Voting Rights................................................................... 6
Section 3.8 Joint Owners Of Stock........................................................... 6
Section 3.9 List Of Stockholders............................................................ 6
Section 3.10 Action Without Meeting......................................................... 7
Section 3.11 Organization................................................................... 8
ARTICLE IV DIRECTORS.............................................................................. 9
Section 4.1 Number And Term Of Office....................................................... 9
Section 4.2 Powers.......................................................................... 9
Section 4.3 Classes of Directors............................................................ 9
Section 4.4 Vacancies....................................................................... 10
Section 4.5 Resignation..................................................................... 10
Section 4.6 Removal......................................................................... 11
Section 4.7 Meetings........................................................................ 11
Section 4.8 Quorum And Voting............................................................... 12
Section 4.9 Action Without Meeting.......................................................... 12
Section 4.10 Fees And Compensation.......................................................... 12
Section 4.11 Committees..................................................................... 12
Section 4.12 Organization................................................................... 13
ARTICLE V OFFICERS............................................................................... 14
Section 5.1 Officers Designated............................................................. 14
Section 5.2 Tenure And Duties Of Officers................................................... 14
Section 5.3 Delegation Of Authority......................................................... 16
Section 5.4 Resignations.................................................................... 16
Section 5.5 Removal......................................................................... 16
ARTICLE VI EXECUTION OF CORPORATE INSTRUMENTS AND
VOTING OF SECURITIES OWNED BY THE CORPORATION.......................................... 17
Section 6.1 Execution Of Corporate Instruments.............................................. 17
Section 6.2 Voting Of Securities Owned By The Corporation................................... 17
ARTICLE VII SHARES OF STOCK........................................................................ 17
Section 7.1 Form And Execution Of Certificates.............................................. 17
Section 7.2 Lost Certificates............................................................... 18
ii
Section 7.3 Transfers....................................................................... 18
Section 7.4 Fixing Record Dates............................................................. 18
Section 7.5 Registered Stockholders......................................................... 19
ARTICLE VIII OTHER SECURITIES OF THE CORPORATION.................................................... 20
Section 8.1 Execution Of Other Securities................................................... 20
ARTICLE IX DIVIDENDS.............................................................................. 20
Section 9.1 Declaration Of Dividends........................................................ 20
Section 9.2 Dividend Reserve................................................................ 20
ARTICLE X FISCAL YEAR............................................................................ 21
Section 10.1 Fiscal Year.................................................................... 21
ARTICLE XI INDEMNIFICATION AND ADVANCEMENT OF EXPENSES............................................ 21
Section 11.1 Right to Indemnification....................................................... 21
Section 11.2 Right to Advancement of Expenses............................................... 21
Section 11.3 Enforcement.................................................................... 21
Section 11.4 Non-Exclusivity of Rights...................................................... 22
Section 11.5 Survival of Rights............................................................. 22
Section 11.6 Insurance...................................................................... 22
Section 11.7 Amendments..................................................................... 22
Section 11.8 Saving Clause.................................................................. 23
Section 11.9 Certain Definitions............................................................ 23
ARTICLE XII NOTICES................................................................................ 24
Section 12.1 Notices........................................................................ 24
ARTICLE XIII AMENDMENTS............................................................................. 26
iii
Section 13.1 Amendments..................................................................... 26
ARTICLE XIV RECORDS AND REPORTS.................................................................... 26
Section 14.1 Maintenance and Inspection of Records.......................................... 26
Section 14.2 Inspection by Directors........................................................ 27
ARTICLE XV CONSTRUCTION........................................................................... 27
Section 15.1 Construction................................................................... 27
iv
AMENDED AND RESTATED BYLAWS
OF
GTX, INC.
(THE "CORPORATION")
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE. The address of the registered office of
the Corporation in the State of Delaware shall be 1209 Orange Street in the City
of Wilmington, County of New Castle, Delaware 19801. The name of its registered
agent at such address is The Corporation Trust Company.
SECTION 1.2 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.
ARTICLE II
CORPORATE SEAL
SECTION 2.1 CORPORATE SEAL. The Corporation may have a corporate seal,
which may be adopted or altered at the pleasure of the Board of Directors, and
the Corporation may use such seal by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced.
ARTICLE III
STOCKHOLDERS' MEETINGS
SECTION 3.1 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, or,
if not so designated, then at the office of the Corporation required to be
maintained pursuant to Section 1.2 hereof.
SECTION 3.2 ANNUAL MEETINGS.
(a) The annual meeting of the stockholders of the Corporation, for
the purpose of election of directors and for such other business as may lawfully
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 with respect to
such meeting; (ii) 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 stockholders notice provided for in
the following subsection (b), who is entitled to vote at the meeting
and who complied with the notice procedures set forth below in this
Section 3.2.
(b) At an annual meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before
the meeting. For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (iii) of
Section 3.2(a) above, (i) the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation, (ii) such other
business must be a proper matter for stockholder action under Delaware
General Corporation Law ("DGCL"), (iii) if the stockholder, or the
beneficial owner on whose behalf any such proposal or nomination is
made, has provided the Corporation with a Solicitation Notice (as
defined in clause (iii) of the last sentence of this Section 3.2(b)),
such stockholder or beneficial owner must, in the case of a proposal,
have delivered a proxy statement and form of proxy to holders of at
least the percentage of the Corporation's voting shares required under
applicable law to carry any such proposal, or, in the case of a
nomination or nominations, have delivered a proxy statement and form of
proxy to holders of a percentage of the Corporation's voting shares
reasonably believed by such stockholder or beneficial owner to be
sufficient to elect the nominee or nominees proposed to be nominated by
such stockholder, and must, in either case, have included in such
materials the Solicitation Notice, and (iv) if no Solicitation Notice
relating thereto has been timely provided pursuant to this section, the
stockholder or beneficial owner proposing such business or nomination
must not have solicited a number of proxies sufficient to have required
the delivery of such a Solicitation Notice under this Section 3.2. To
be timely, a stockholder's notice shall be delivered to the Secretary
at the principal executive offices of the Corporation not later than
the close of business on the one hundred twentieth (120th) day, nor
earlier than the close of business on the one hundred fiftieth (150th)
day, prior to the first anniversary of the date of the proxy statement
delivered to stockholders in connection with the preceding year's
annual meeting; provided, however, that in the event (i) 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, (ii) no proxy statement was delivered
to stockholders in connection with the preceding year's annual meeting,
or (iii) the Corporation did not hold an annual meeting in the
preceding year, notice by the stockholder to be timely must be so
delivered 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 tenth (10th) day following the day on which
public announcement of the date of such meeting is first made. In no
event shall the public announcement of an adjournment of an annual
meeting commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth:
(A) as to each person whom the stockholder proposes to nominate for
election or reelection as a director, all information relating to such
person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "1934 Act") (including such person's written consent to being
named in the proxy statement as a nominee and to serving as a director
if elected); (B) as to any other business that the stockholder proposes
to bring before the
2
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 in such business of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made;
and (C) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner, (ii) the class and
number of shares of the Corporation which are owned beneficially and of
record by such stockholder and such beneficial owner, (iii) a
description of all arrangements or understandings between the
stockholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be
made by such stockholder, and (iv) whether either such stockholder or
beneficial owner intends to deliver a proxy statement and form of proxy
to holders of, in the case of the proposal, at least the percentage of
the Corporation's voting shares required under applicable law to carry
the proposal or, in the case of a nomination or nominations, a
sufficient number of holders of the Corporation's voting shares to
elect such nominee or nominees (an affirmative statement of such
intent, a "Solicitation Notice").
(c) Notwithstanding anything in the third sentence of
Section 3.2(b) of these Bylaws (as the same may be amended and/or
restated from time to time, the "Bylaws") to the contrary, in the event
that the number of directors to be elected to the Board of Directors of
the Corporation is increased and there is no public announcement naming
all of the nominees for director or specifying the size of the
increased Board of Directors made by the Corporation at least seventy
(70) days prior to the first anniversary of the preceding year's annual
meeting (or, if the annual meeting is held more than thirty (30) days
before or thirty (30) days after such anniversary date, at least
seventy (70) days prior to such annual meeting) a stockholder's notice
required by this Section 3.2 shall also be considered timely, but only
with respect to nominees for any new positions created by such
increase, if it shall be delivered to 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.
(d) Only such persons who are nominated in accordance
with the procedures set forth in this Section 3.2 shall be eligible to
serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting
in accordance with the procedures set forth in this Section 3.2. Except
as otherwise provided by law, the chairman 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, to declare that such defective proposal or
nomination shall not be presented for stockholder action at the meeting
and shall be disregarded.
(e) Notwithstanding the foregoing provisions of this
Section 3.2, in order to include information with respect to a
stockholder proposal in the proxy statement and form of proxy for a
stockholders' meeting, stockholders must provide notice as required by
the regulations promulgated under the 1934 Act. Nothing in these Bylaws
shall be deemed to affect
3
any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the 1934 Act.
(f) For purposes of these Bylaws, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press, PR Newswire, Reuters or comparable national news service or in
a document publicly filed by the Corporation with the U.S. Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
SECTION 3.3 SPECIAL MEETINGS.
(a) Special meetings of the stockholders of the
Corporation may be called, for any purpose or purposes, only by (i) the Chairman
of the Board of Directors, (ii) the Chief Executive Officer, or (iii) the Board
of Directors pursuant to a resolution adopted by a majority of the directors
then in office.
(b) If a special meeting is properly called by any person
or persons other than the Board of Directors, the request shall be in writing,
specifying the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by certified or registered mail, return
receipt requested, to the Secretary of the Corporation. No business may be
transacted at such special meeting otherwise than specified in such notice. The
Board of Directors shall determine the time and place of such special meeting,
which shall be held not less than thirty-five (35) nor more than one hundred
twenty (120) days after the date of the receipt of the request. Upon
determination of the time and place of the meeting, the Secretary shall cause
notice to be given to the stockholders entitled to vote, in accordance with the
provisions of Section 3.4 of these Bylaws. Nothing contained in this subsection
(b) shall be construed as limiting, fixing, or affecting the time when a meeting
of stockholders called by action of the Board of Directors may be held.
(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 pursuant to the Corporation's notice of meeting (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 these Bylaws who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 3.3(c). 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
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 the
stockholder's notice otherwise required by Section 3.2(b) of these Bylaws shall
be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the one hundred twentieth
(120th) day prior to such special meeting and 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. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholder's notice as described above.
4
(d) Unless the Corporation's Certificate of Incorporation
(as the same may be amended and/or restated from time to time, the "Certificate
of Incorporation") provides otherwise, any special meeting of the stockholders
may be cancelled by resolution duly adopted by a majority of the directors then
in office upon public notice given prior to the date previously scheduled for
such meeting of stockholders.
SECTION 3.4 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, date and hour of the meeting, the
means of remote communication(s), if any, by which stockholders and proxyholders
may be deemed to be present in person and vote at such meeting (as authorized by
the Board of Directors in its sole discretion pursuant to Section 211(a)(2) of
the DGCL), and, in the case of a special meeting, the purpose or purposes of the
meeting. Notice of any meeting of stockholders, if mailed, is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
Corporation and otherwise is given when delivered. Notice of the time, place,
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 attendance thereat in person 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. Neither the business to be transacted at,
nor the purpose of, any annual or special meeting of the stockholders need be
specified in any written waiver of notice or any waiver by electronic
transmission.
SECTION 3.5 QUORUM. At all meetings of stockholders, except where
otherwise provided by statute, the Certificate of Incorporation or these Bylaws,
the presence, in person or by proxy duly authorized, of the holders of a
majority 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 chairman of
the meeting or by vote of the holders of a majority 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 law or by applicable stock exchange or Nasdaq 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 shares present in
person or represented by proxy at the meeting and entitled to vote generally on
the subject matter shall be the act of the stockholders. Except as otherwise
provided by law, the Certificate of Incorporation or these Bylaws, 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 generally on the
election of directors. Where a separate vote by a class or classes or series is
required, except where otherwise provided
5
by the statute or by the Certificate of Incorporation or these Bylaws, a
majority of the outstanding shares of such class or classes or series, present
in person 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 the Certificate of Incorporation or these
Bylaws, the affirmative vote of the majority (plurality, in the case of the
election of directors) of votes cast at the meeting shall be the act of such
class or classes or series.
SECTION 3.6 ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any meeting
of stockholders, whether annual or special, may be adjourned from time to time
either by the chairman of the meeting or by the vote of a majority of the shares
present in person or represented by proxy at the meeting. When a meeting is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof, and the means of remote communication(s),
if any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such adjourned meeting (as authorized by the Board of
Directors in its sole discretion pursuant to Section 211(a)(2) of the DGCL), 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 3.7 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 7.4 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 or by an
agent or agents authorized by a proxy granted in accordance with the DGCL. 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 3.8 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 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 Section 217(b) of the DGCL. 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 3.9 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
6
entitled to vote at said meeting, arranged in alphabetical order, showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Nothing contained in this Section 3.9 shall require the
Corporation to include electronic mail addresses or other electronic contact
information on such list. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, (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 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 3.10 ACTION WITHOUT MEETING. 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
not be taken without a meeting.
SECTION 3.11 ORGANIZATION.
(a) At every meeting of stockholders, (i) the Chairman of
the Board of Directors or, if a Chairman of the Board of Directors has not been
appointed or is absent, (ii) the Chief Executive Officer or, if the Chief
Executive Officer is absent, (iii) the President or, if the President is absent,
(iv) such person as the Chairman of the Board of Directors shall appoint or, if
such chairman or committee has not been appointed, (v) any officer of the
Corporation chosen by the Board of Directors, shall act as chairman of the
meeting. The Secretary, or, in his absence, such person appointed by the
chairman of the meeting, shall act as secretary of the meeting.
(b) The Board of Directors shall, in advance of any
meeting of stockholders, appoint one (1) or more inspector(s), who may include
individual(s) who serve the Corporation in other capacities, including without
limitation as officers, employees or agents, to act at the meeting of
stockholders and make a written report thereof. The Board of Directors may
designate one (1) or more persons as alternate inspector(s) to replace any
inspector, who fails to act. If no inspector or alternate has been appointed or
is able to act at a meeting of stockholders, the chairman of the meeting shall
appoint one (1) or more inspector(s) to act at the meeting. Each inspector,
before discharging his duties, shall take and sign an oath to faithfully execute
the duties of inspector with strict impartiality and according to the best of
his ability. The inspector(s) or alternate(s) shall have the duties prescribed
pursuant to Section 231 of the DGCL or other applicable law.
(c) 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 chairman 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
chairman, 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
7
to stockholders of record of the Corporation and their duly authorized and
constituted proxies and such other persons as the chairman 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 chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with
rules of parliamentary procedure.
ARTICLE IV
DIRECTORS
SECTION 4.1 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 reason 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 4.2 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 4.3 CLASSES OF DIRECTORS.
(a) Subject to the rights of the holders of any series of
preferred stock to elect additional directors under specified circumstances, the
directors shall be divided into three classes, as nearly equal in number as
possible, designated as Class I, Class II and Class III, respectively. At the
annual meeting of stockholders held in 2004, the term of office of the Class I
directors shall expire and Class I directors shall be elected for a term ending
on the date of the third annual meeting of stockholders following the annual
meeting at which such director was elected. At the annual meeting of
stockholders held in 2005, the term of office of the Class II directors shall
expire and Class II directors shall be elected for a term ending on the date of
the third annual meeting of stockholders following the annual meeting at which
such director was elected. At the annual meeting of stockholders held in 2006,
the term of office of the Class III directors shall expire and Class III
directors shall be elected for a term ending on the date of the third annual
meeting of stockholders following the annual meeting at which such director was
elected. At each succeeding annual meeting of stockholders, directors shall be
elected for a term ending on the date of the third annual meeting of
stockholders following the annual meeting at which such director was elected to
succeed the directors of the class whose terms expire at such annual meeting. If
any newly created directorship may, consistently with the rule that the three
classes shall be as nearly equal in number as possible, be allocated to more
than one class, the Board of Directors shall allocate it to the available class
whose term of office is due to expire at the earliest date following such
allocation. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
8
(b) Directors need not be stockholders unless so required
by the Certificate of Incorporation. The Certificate of Incorporation or these
Bylaws may prescribe other qualifications for directors.
(c) Notwithstanding the foregoing provisions of this
section, each director shall serve until his successor is duly elected and
qualified or until his earlier death, resignation, disqualification or removal.
No decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
SECTION 4.4 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. 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 Section 4.4 in the
case of the death, removal, disqualification or resignation of any director.
SECTION 4.5 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, upon receipt by the Secretary or at the pleasure of the Board
of Directors. If no such specification is made, it shall be deemed effective at
the pleasure of the Board of Directors. 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 the
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 successor shall have been duly
elected and qualified.
SECTION 4.6 REMOVAL. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, any one or more or all of the directors may
be removed from the Board of Directors, but only for cause and only by the
affirmative vote of the holders of at least a majority of the voting power of
all then outstanding shares of capital stock of the Corporation then entitled to
vote in the election of directors, voting together as a single class.
SECTION 4.7 MEETINGS.
(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
9
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 Chairman of the Board of Directors, the President, or a majority
of the directors then in office.
(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
pursuant to 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 to each
director (i) by giving notice to such director in person or by telephone,
including a voice messaging system or other system designed to record and
communicate messages, during normal business hours, at least twenty-four (24)
hours before the meeting (ii) by sending a telegram or delivering notice by
facsimile transmission, by electronic mail or by hand, to such director at his
last known business or home address, during normal business hours, at least
twenty-four (24) hours before the meeting, or (iii) by mailing notice, via first
class United States mail, to such director at his last known business or home
address at least three (3) days in advance 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. Notice of a special
meeting of the Board of Directors need not specify the purpose of the meeting.
(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 had 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. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in any written waiver of notice or any waiver by electronic
transmission.
SECTION 4.8 QUORUM AND VOTING.
(a) Unless the Certificate of Incorporation requires a
greater number, a quorum of the Board of Directors shall consist of a majority
of the directors then in office. In the event one or more directors shall be
disqualified to vote at any meeting, then the required quorum shall be reduced
by one for each such director so disqualified; provided, however, that in
10
no case shall less than one-third (1/3) of the total number of directors
constitute a quorum. 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 4.9 ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, 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 4.10 FEES AND COMPENSATION. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors, or
any committee thereof, including, if so approved by resolution of the Board of
Directors or such committee, 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.
SECTION 4.11 COMMITTEES.
(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 expressly
required by the DGCL to be submitted to stockholders for approval, or (ii)
adopting, amending or repealing any provision of these Bylaws.
(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.
11
(c) TERM. The Board of Directors, subject to any
requirements of any outstanding series of Preferred Stock and the provisions of
subsections (a) and (b) of this Section 4.11, 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 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 4.11 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 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 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.
SECTION 4.12 ORGANIZATION. At every meeting of the directors, the
Chairman of the Board of Directors, or, if a Chairman of the Board of Directors
has not been appointed or 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 chairman of the meeting chosen by a majority of
the directors present, shall preside over the meeting. The Secretary, or in his
absence, such person appointed by the chairman of the meeting, shall act as
secretary of the meeting.
ARTICLE V
OFFICERS
SECTION 5.1 OFFICERS DESIGNATED. The officers of the Corporation shall
include, if and when designated by the Board of Directors, the Chairman of the
Board of
12
Directors, the Chief Executive Officer, the President, one or more Vice
Presidents, the Secretary, the Chief Financial Officer and the Treasurer, all of
whom shall be elected at the annual organizational meeting of the Board of
Directors. The Board of Directors may also appoint one or more Assistant
Secretaries, 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 or a committee thereof.
SECTION 5.2 TENURE AND DUTIES OF OFFICERS.
(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, subject to the rights, if any, of an officer under contract of
employment. If the office of any officer becomes vacant for any reason, the
vacancy may be filled by the Board of Directors.
(b) CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of
the Board of Directors, if such an officer be elected, shall, if present,
preside at meetings of the Board of Directors and stockholders and exercise and
perform such other powers and duties as may from time to time be assigned to him
by the Board of Directors or as may be prescribed by these Bylaws. If there is
no Chief Executive Officer or President, then the Chairman of the Board of
Directors shall also be the Chief Executive Officer of the Corporation and as
such shall also have the powers and duties prescribed in Section 5.2(c) below.
(c) CHIEF EXECUTIVE OFFICER. Subject to such supervisory
powers, if any, as the Board of Directors may give to the Chairman of the Board
of Directors, the Chief Executive Officer, if any, shall, subject to the control
of the Board of Directors, have general supervision, direction, and control of
the business and affairs of the Corporation and shall report directly to the
Board of Directors. All other officers, officials, employees and agents shall
report directly or indirectly to the Chief Executive Officer. The Chief
Executive Officer shall see that all orders and resolutions of the Board of
Directors are carried into effect. In the absence of a Chairman of the Board of
Directors, the Chief Executive Officer shall preside at all meetings of the
Board of Directors.
(d) PRESIDENT. In the absence or disability of the Chief
Executive Officer, the President shall perform all the duties of the Chief
Executive Officer. When acting as the Chief Executive Officer, the President
shall have all the powers of, and be subject to all the restrictions upon, the
Chief Executive Officer. The President shall have such other powers and perform
such other duties as form time to time may be prescribed for him by the Board of
Directors, these Bylaws, the Chief Executive Officer or the Chairman of the
Board of Directors.
(e) VICE PRESIDENT. In the absence or disability of the
President, the Vice President(s), if any, in order of their rank as fixed by the
Board of Directors or, if not ranked, a
13
Vice President designated by the Board of Directors, shall perform all the
duties of the President and, when so acting, shall have all the powers of, and
be subject to all the restrictions upon, the President. The Vice President(s)
shall have such other powers and perform such other duties as form time to time
may be prescribed for them respectively by the Board of Directors, these Bylaws,
the Chairman of the Board of Directors, the Chief Executive Officer or, in the
absence of a Chief Executive Officer, the President.
(f) GENERAL COUNSEL. The General Counsel shall serve as
the Corporation's primary in-house legal counsel and shall discharge such other
duties as may from time to time be assigned by the Board of Directors, the Chief
Executive Officer or the President.
(g) SECRETARY. The Secretary shall keep or cause to be
kept, at the principal executive office of the Corporation, or such other place
as the Board of Directors may direct, a book of minutes of all meetings and
actions of directors, committees of directors, and stockholders. The minutes
shall show the time and place of each meeting, whether regular or special (and,
if special, how authorized and the notice given), the names of those present at
directors' meetings or committee meetings, the number of shares present or
represented at stockholders' meetings, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal
executive office of the Corporation or at the office of the Corporation's
transfer agent or registrar, as determined by resolution of the Board of
Directors, a share register, or a duplicate share register, showing the names of
all stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares, and the number
and date of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders, the Board of Directors and any committee(s) of the Board of
Directors, required to be given by law or by these Bylaws. The Secretary shall
keep the seal of the Corporation, if one be adopted, in safe custody and shall
have such other powers and perform such other duties as may be prescribed by the
Board of Directors or by these Bylaws.
(h) CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall keep and maintain, or cause to be kept and maintained, adequate and
correct books and records of accounts of the properties and business
transactions of the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital and retained earnings.
The Chief Financial Officer shall deposit all money and other valuables
in the name and to the credit of the Corporation with such depositaries as may
be designated by the Board of Directors or Chief Executive Officer. The Chief
Financial Officer shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall render to the Board of Directors and Chief
Executive Officer, or in the absence of a Chief Executive Officer, the
President, whenever they request, an account of all of his transactions as Chief
Financial Officer and of the financial condition of the Corporation, and shall
have such other powers and perform such other duties as may be prescribed by the
Board of Directors or these Bylaws. In lieu of any contrary
14
resolution duly adopted by the Board of Directors, the Chief Financial Officer
shall also be the Treasurer of the Corporation.
(i) ASSISTANT SECRETARY. The Assistant Secretary(ies), if
any, in the order determined by the Board of Directors (or if there be no such
determination, then in the order of their election) shall, in the absence of the
Secretary or in the event of his inability or refusal to act, 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 may from time to time
prescribe.
(j) ASSISTANT TREASURER. The Assistant Treasurer(s), if
any, in the order determined by the Board of Directors (or if there be no such
determination, then in the order of their election), shall, in the absence of
the Chief Financial Officer or in the event of his or her inability or refusal
to act, perform the duties and exercise the powers of the Chief Financial
Officer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
SECTION 5.3 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 5.4 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 5.5 REMOVAL. Subject to the rights, if any, of an officer under
contract of employment, 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 superior officers upon
whom such power of removal may have been conferred by the Board of Directors.
15
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
SECTION 6.1 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 6.2 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 Chairman of the Board of Directors, the Chief Executive Officer, the
President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
SECTION 7.1 FORM AND EXECUTION OF CERTIFICATES. Certificates for the
shares of stock of the Corporation shall be in such form as is consistent with
the Certificate of Incorporation and applicable law. Every holder of stock in
the Corporation shall be entitled to have a certificate signed by or in the name
of the Corporation by the Chairman 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. To the extent the Corporation
is authorized to issue more than one (1) class of stock or more than one (1)
series of any class, each certificate shall state upon the face or back thereof,
in full or in summary, all of the powers, designations, preferences, and rights,
and the limitations or restrictions of the shares authorized to be issued or
shall, except as otherwise required by law, set forth on the face or back a
statement that the Corporation will
16
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional, or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. Within a
reasonable time after the issuance or transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to this section or otherwise required by law or with respect to this
section a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
SECTION 7.2 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.
SECTION 7.3 TRANSFERS.
(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 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.
SECTION 7.4 FIXING RECORD DATES.
(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, in advance, 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
17
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 7.5 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 Delaware law.
18
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
SECTION 8.1 EXECUTION OF OTHER SECURITIES. All bonds, debentures and
other corporate securities of the Corporation, other than stock certificates
(covered in Section 7.1), may be signed by the Chairman 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, if any, may be
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, if
applicable, 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.
ARTICLE IX
DIVIDENDS
SECTION 9.1 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 9.2 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.
19
ARTICLE X
FISCAL YEAR
SECTION 10.1 FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
ARTICLE XI
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
SECTION 11.1 RIGHT TO INDEMNIFICATION. The Corporation shall indemnify
each person who is or was 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 the person
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust or
other enterprise, from and against all expense, liability and loss (including,
without limitation, attorney's fees, judgments, fines, penalties and amounts
paid in settlement) actually and reasonably incurred or suffered by such person
in connection with such action, suit or proceeding, to the fullest extent
permitted under the DGCL, as it exists on the date hereof or as it may hereafter
be amended; provided, however, that, except as provided in Section 11.3 below
with respect to proceedings to enforce rights to indemnification, the
Corporation shall not be required to indemnify any such person seeking
indemnification in connection with an action, suit or proceeding (or part
thereof) initiated by such person unless such action, suit or proceeding (or
part thereof) was authorized by the Board of Directors.
SECTION 11.2 RIGHT TO ADVANCEMENT OF EXPENSES. With respect to any
person who is a party or is threatened to be made a party to any threatened or
pending action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that the person is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise, the
Corporation may, in its discretion and upon such terms and conditions, if any,
as the Corporation deems appropriate, advance the expenses incurred by such
person in defending such action, suit or proceeding prior to its final
disposition.
SECTION 11.3 ENFORCEMENT. Without the necessity of entering into an
express contract, all rights under this Article XI to indemnification to each
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, 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 such other person. Any right to indemnification granted by this
Article XI to each person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, 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 is denied, in
20
whole or in part, or (ii) no disposition of such claim is made within ninety
(90) days of request therefor. The claimant in such enforcement action, to the
extent successful, 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, a committee of the 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, a committee of the 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 person to enforce a right to indemnification hereunder, the
burden of proving that such person is not entitled to be indemnified under this
Article XI or otherwise shall be on the Corporation.
SECTION 11.4 NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification
and to the advancement of expenses conferred in this Article XI shall not be
exclusive of any other right which a person may have or hereafter acquire under
any applicable law (statutory or common), the Certificate of Incorporation,
these Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his 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 the advancement of
expenses, to the fullest extent not prohibited by the DGCL or by any other
applicable law.
SECTION 11.5 SURVIVAL OF RIGHTS. The rights to indemnification and to
the advancement of expenses conferred by this Article XI shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
SECTION 11.6 INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, office, employee or
agent of the Corporation, or is 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
such person and incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the Corporation would have the
power to indemnify such person against such liability under this Article XI, the
DGCL or otherwise.
SECTION 11.7 AMENDMENTS. Any amendment, repeal or modification of, or
adoption of any provision inconsistent with, this Article XI (or any provision
hereof), shall not adversely affect any right to indemnification or advancement
of expenses granted to any person pursuant hereto with respect to any act or
omission of such person occurring prior to the time of such amendment, repeal,
modification or adoption (regardless of whether the action suit or
21
proceeding relating to such acts or omissions is commenced before or after the
time of such amendment, repeal, modification or adoption.
SECTION 11.8 SAVING CLAUSE. If this Article XI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each director, officer, employee
and agent to the fullest extent not prohibited by any applicable portion of this
Article XI that shall not have been invalidated, or by any other applicable law.
If this Article XI shall be invalid due to the application of the
indemnification provisions of another jurisdiction, then the Corporation shall
indemnify each director, officer, employee and agent to the fullest extent under
any other applicable law.
SECTION 11.9 CERTAIN DEFINITIONS. For purposes of this Article XI:
(1) 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, employees and agents, so that any person who was a director,
officer, employee or agent of such constituent corporation, 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 XI with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(2) References to "other enterprises" shall
include, without limitation, 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, without limitation, 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 he 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 Article XI.
22
ARTICLE XII
NOTICES
SECTION 12.1 NOTICES.
(a) NOTICE TO STOCKHOLDERS. Written notice to
stockholders of stockholder meetings shall be given as provided in Section 3.4
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 United
States mail or nationally recognized overnight courier, or by facsimile,
telegraph or telex or by electronic mail or other electronic means.
(b) NOTICE TO DIRECTORS. Any notice required to be given
to any director may be given by the method stated in subsection (a) above, as
otherwise provided in these Bylaws, except that such notice (other than one
which is delivered personally) shall 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 post office address of such director.
(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) 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
recipients, and any other permissible method or methods may be employed in
respect of any other or others.
(e) NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL.
Whenever notice is required to be given, under any provision of the DGCL, the
Certificate of Incorporation or these Bylaws, to any person with whom
communication is unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or
meeting which shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice
had been duly given. In the event 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) NOTICE RETURNED UNDELIVERABLE. Whenever notice is
required to be given, under any provision of the DGCL, the Certificate of
Incorporation or these Bylaws, to any stockholder to whom (i) notice of two (2)
consecutive annual meetings, or (ii) all, and at
23
least two (2), payments (if sent by first-class mail) of dividends or interest
on securities during a twelve (12) month period, have been mailed addressed to
such person at such person's address as shown on the records of the Corporation
and have been returned undeliverable, the giving of such notice to such person
shall not be required. Any actions or meeting which shall be taken or held
without notice to such person shall have the same force and effect as if such
notice had been duly given. If any such person shall deliver to the Corporation
a written notice setting forth such person's then current address, the
requirement that notice be given to such person shall be reinstated. 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 need not state
that the Corporation did not give notice to persons not required to be given
notice pursuant to Section 230(b) of the DGCL. The exception in clause (i) above
to the requirement that notice be given shall not be applicable to any notice
returned as undeliverable if the notice was given by electronic transmission.
(g) NOTICE TO STOCKHOLDERS SHARING AN ADDRESS. Except as
otherwise prohibited under the DGCL, any notice given under the provisions of
the DGCL, the Certificate of Incorporation or these Bylaws shall be effective if
given by a single written notice to stockholders who share an address if
consented to by the stockholders at that address to whom such notice is given.
Such consent shall be deemed to have been given if such stockholder fails to
object in writing to the Corporation within 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.
(h) NOTICE BY ELECTRONIC TRANSMISSION. Without limiting
the manner by which notice otherwise may be given effectively to stockholders,
any notice to stockholders given by the Corporation under any provision of the
DGCL, the Certificate of Incorporation or these Bylaws shall be effective if
given by a form of electronic transmission previously consented to by the
stockholder to whom the notice is given. Any such consent shall be revocable by
the stockholder by written notice to the Corporation. Any such consent shall be
deemed revoked if (i) the Corporation is unable to deliver by electronic
transmission two (2) consecutive notices given by the Corporation in accordance
with such consent, and (ii) such inability becomes known to the Secretary or an
Assistant Secretary of the Corporation, the transfer agent or other person
responsible for the giving of notice; provided, however, the inadvertent failure
to treat such inability as a revocation shall not invalidate any meeting or
other action.
Notice given pursuant to the above paragraph shall be deemed given (i)
if by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice, (ii) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to
receive notice, (iii) if by a posting on an electronic network together with a
separate notice to the stockholder of such specific posting, upon the later of
(A) such posting and (B) the giving of such separate notice, and (iv) if by any
other form of electronic transmission, when directed to the stockholder. An
affidavit of the Secretary or Assistant Secretary, the transfer agent or other
agent of the Corporation that the notice has been given by a form of electronic
transmission shall in the absence of fraud, be prima facie evidence of the facts
stated therein.
24
For purposes of these Bylaws, "electronic transmission" means any form
of communication, not directly involving the physical transmission of paper,
that creates a record that may be retained, retrieved and reviewed by a
recipient thereof, and that may be directly reproduced in paper form by such a
recipient through an automated process. This Section 12.1 shall not apply to
Section 164 (failure to pay for stock; remedies), Section 296 (adjudication of
claims; appeal), Section 311 (revocation of voluntary dissolution), Section 312
(renewal, revival, extension and restoration of certificate of incorporation) or
Section 324 (attachment of shares of stock) of the DGCL.
ARTICLE XIII
AMENDMENTS
SECTION 13.1 AMENDMENTS. The Board of Directors is expressly empowered
to adopt, amend or repeal the Bylaws of the Corporation. Any adoption, amendment
or repeal of the Bylaws of the Corporation by the Board of Directors shall
require the approval of a majority of the directors then in office. The
stockholders shall also have power to adopt, amend or repeal the 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, 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, shall
be required to adopt, amend or repeal any provision of the Bylaws of the
Corporation.
ARTICLE XIV
RECORDS AND REPORTS
SECTION 14.1 MAINTENANCE AND INSPECTION OF RECORDS.
(a) The Corporation shall, either at its principal
executive office or at such place or places as designated by the Board of
Directors, keep a record of its stockholders listing their names and addresses
and the number and class of shares held by each stockholder, a copy of these
Bylaws, minute books, accounting books and other records. Any such records
maintained by the Corporation may be kept on, or by means of, or be in the form
of, any information storage device or method, provided that the records so kept
can be converted into clearly legible paper form within a reasonable time. The
Corporation shall so convert any records so kept upon the request of any person
entitled to inspect such records pursuant to the provisions of the DGCL. When
records are kept in such manner, a clearly legible paper form produced from or
by means of the information storage device or method shall be admissible in
evidence, and accepted for all other purposes, to the same extent as an original
paper form accurately portrays the record.
(b) 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 a purpose reasonably related to such person's interest as a
stockholder. In
25
every instance where an attorney or other agent is the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing that 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 Delaware or at its principal place of
business.
SECTION 14.2 INSPECTION BY DIRECTORS. Any director shall have the right
to examine the Corporation's stock ledger, a list of its stockholders, and it
other books and records for a purpose reasonably related to his or her position
as a director. The Court of Chancery is hereby vested with the exclusive
jurisdiction to determine whether a director is entitled to the inspection
sought. The court may summarily order the Corporation to permit the director to
inspect any and all books and records, the stock ledger, and the stock list and
to make copies or extracts therefrom. The Court may, in its discretion,
prescribe any limitations or conditions with reference to the inspection, or
award such other and further relief as the Court may deem just and proper.
ARTICLE XV
CONSTRUCTION
SECTION 15.1 CONSTRUCTION. Unless the context requires otherwise, the
general provisions, rules of construction and definitions in the DGCL shall
govern the construction of these Bylaws. The singular number includes the
plural, and the plural number includes the singular. All pronouns used in these
Bylaws shall be deemed to refer to the masculine, feminine and/or neuter, as the
identity of the person or persons so designated may require.
26