Exhibit 3.1
AMENDED AND RESTATED BY-LAWS
OF
COLLAGENEX PHARMACEUTICALS, INC.
TABLE OF CONTENTS
Page
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ARTICLE I STOCKHOLDERS.......................................................1
1.1 Place of Meetings..........................................1
1.2 Annual Meeting.............................................1
1.3 Special Meetings...........................................1
1.4 Notice of Meetings.........................................1
1.5 Voting List................................................1
1.6 Quorum.....................................................2
1.7 Adjournments...............................................2
1.8 Voting and Proxies.........................................2
1.9 Nomination of Directors....................................3
1.10 Notice of Business at Annual Meetings......................4
1.11 Conduct of Meetings........................................6
ARTICLE II DIRECTORS.........................................................7
2.1 General Powers.............................................7
2.2 Number, Election and Qualification.........................7
2.3 Terms of Office; Vacancies.................................7
2.4 Quorum.....................................................8
2.5 Action at Meeting..........................................8
2.6 Removal....................................................8
2.7 Resignation................................................8
2.8 Regular Meetings...........................................8
2.9 Special Meetings...........................................8
2.10 Notice of Special Meetings.................................8
2.11 Meetings by Conference Communications Equipment............8
2.12 Action by Consent..........................................9
2.13 Organization...............................................9
2.14 Committees.................................................9
2.15 Compensation of Directors..................................9
ARTICLE III OFFICERS.........................................................9
3.1 Titles.....................................................9
3.2 Election..................................................10
3.3 Qualification.............................................10
3.4 Tenure....................................................10
3.5 Resignation and Removal...................................10
3.6 Vacancies.................................................10
3.7 Chairman of the Board.....................................10
3.8 President; Chief Executive Officer........................10
3.9 Vice Presidents...........................................11
3.10 Chief Financial Officer...................................11
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3.11 Secretary and Assistant Secretaries.......................11
3.12 Treasurer and Assistant Treasurers........................11
3.13 Salaries..................................................12
ARTICLE IV CAPITAL STOCK....................................................12
4.1 Issuance of Stock.........................................12
4.2 Certificates of Stock.....................................12
4.3 Transfers.................................................12
4.4 Lost, Stolen or Destroyed Certificates....................13
4.5 Fractional Shares.........................................13
4.6 Record Date...............................................13
ARTICLE V INDEMNIFICATION...................................................13
5.1 Right to Indemnification..................................13
5.2 Notification; Assumption of Defense.......................14
5.3 Prepayment of Expenses....................................14
5.4 Indemnitee Initiation; Other Indemnification..............14
5.5 Entitlement to Indemnification............................15
5.6 Non-Exclusivity of Rights.................................15
5.7 Amendment or Repeal.......................................15
ARTICLE VI GENERAL PROVISIONS...............................................15
6.1 Fiscal Year...............................................15
6.2 Corporate Seal............................................15
6.3 Waiver of Notice..........................................15
6.4 Contracts.................................................16
6.5 Proxies; Powers of Attorney; Other Instruments............16
6.6 Financial Reports.........................................16
6.7 Evidence of Authority.....................................16
6.8 Certificate of Incorporation..............................16
6.9 Transactions with Interested Parties......................16
6.10 Location and Form of Records..............................17
6.11 Severability..............................................17
6.12 Pronouns..................................................17
ARTICLE VII AMENDMENTS......................................................17
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ARTICLE I
STOCKHOLDERS
1.1 Place of Meetings. All meetings of stockholders shall be held at such
place as may be designated from time to time by the Board of Directors, the
Chairman of the Board or the President or, if not so designated, at the
principal office of the Corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date and at a time designated by
the Board of Directors, the Chairman of the Board or the President (which date
shall not be a legal holiday in the place where the meeting is to be held). If
no annual meeting is held in accordance with the foregoing provisions, a special
meeting may be held in lieu of the annual meeting, and any action taken at that
special meeting shall have the same effect as if it had been taken at the annual
meeting, and in such case all references in these By-laws to the annual meeting
of the stockholders shall be deemed to refer to such special meeting.
1.3 Special Meetings. Special meetings of stockholders for any purpose or
purposes may be called at any time by the Board of Directors, the Chairman of
the Board or the President, but such special meetings may not be called by any
other person or persons. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose or purposes
stated in the notice relating to the meeting.
1.4 Notice of Meetings. Except as otherwise provided by law, notice of each
meeting of stockholders, whether annual or special, shall be given not less than
10 nor more than 60 days before the date of the meeting to each stockholder
entitled to vote at such meeting. Without limiting the manner by which notice
otherwise may be given to stockholders, any notice shall be effective if given
by a form of electronic transmission consented to (in a manner consistent with
the General Corporation Law of the State of Delaware) by the stockholder to whom
the notice is given. The notices of all meetings shall state the place, date and
time of the meeting and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at
such meeting. The notice of a special meeting shall state, in addition, the
purpose or purposes for which the meeting is called. If notice is given by mail,
such notice shall be deemed 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. If notice is given by electronic
transmission, such notice shall be deemed given at the time specified in Section
232 of the General Corporation Law of the State of Delaware.
1.5 Voting List. The Secretary shall prepare, at least 10 days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, for a period of at least 10 days prior to the meeting:
(i) on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with notice of the meeting, or
(ii) during ordinary business hours, at the principal place of business of the
Corporation. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. Except as
otherwise provided by law, the stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the list of
stockholders or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
1.6 Quorum. Except as otherwise provided by law, the Certificate of
Incorporation or these By-laws, the holders of a majority in voting power of the
outstanding shares of the capital stock of the Corporation entitled to vote at
the meeting, present in person, present by means of remote communication in a
manner, if any, authorized by the Board of Directors in its sole discretion, or
represented by proxy, shall constitute a quorum for the transaction of business.
A quorum, once established at a meeting, shall not be broken by the withdrawal
of enough votes to leave less than a quorum.
1.7 Adjournments. Any meeting of stockholders may be adjourned from time to
time to any other time and to any other place at which a meeting of stockholders
may be held under these By-laws by the stockholders present or represented at
the meeting and entitled to vote, although less than a quorum, or, if no
stockholder is present, by any officer entitled to preside at or to act as
secretary of such meeting. It shall not be necessary to notify any stockholder
of any adjournment of less than 30 days if the time and place of the adjourned
meeting, and the means of remote communication, if any, by which stockholders
and proxyholders may be deemed to be present in person and vote at such
adjourned meeting, are announced at the meeting at which adjournment is taken,
unless after the adjournment a new record date is fixed for the adjourned
meeting. At the adjourned meeting, the Corporation may transact any business
which might have been transacted at the original meeting.
1.8 Voting and Proxies. Except as otherwise provided by or pursuant to the
provisions of the Certificate of Incorporation, each stockholder entitled to
vote at any meeting of stockholders shall be entitled to one vote for each share
of stock held by such stockholder which has voting power upon the matter in
question. Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for such stockholder by proxy, but no
such proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by delivering to the Secretary of the Corporation a revocation of the
proxy or a new proxy bearing a later date. Voting at meetings of stockholders
need not be by written ballot and may be by means of remote communications, as
determined by the Board of Directors, by which stockholders may be deemed to be
present in person and vote at such meetings. At all meetings of stockholders for
the election of directors a plurality of the votes cast shall be sufficient to
elect. All other elections and questions shall, unless otherwise provided by the
Certificate of Incorporation, these By-laws, the rules or regulations of any
stock exchange applicable to the Corporation, or applicable law or pursuant to
any regulation applicable to the Corporation or its securities, be decided by
the affirmative vote of the holders of a majority in voting power of the shares
of stock of the Corporation which are present in person or by proxy and entitled
to vote thereon.
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1.9 Nomination of Directors.
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(a) Except for (i) any directors entitled to be elected by the holders of
preferred stock and (ii) any directors elected in accordance with Section 2.3
hereof by the Board of Directors to fill a vacancy or newly created
directorship, only persons who are nominated in accordance with the procedures
in this Section 1.9 shall be eligible for election as directors. Nomination for
election to the Board of Directors of the Corporation at a meeting of
stockholders may be made (i) by or at the direction of the Board of Directors or
(ii) by any stockholder of the Corporation who (x) complies with the notice
procedures set forth in Section 1.9(b) and (y) is a stockholder of record on the
date of the giving of such notice and on the record date for the determination
of stockholders entitled to vote at such meeting.
(b) To be timely, a stockholder's notice must be received in writing by the
Secretary at the principal executive offices of the Corporation as follows: (x)
in the case of an election of directors at an annual meeting of stockholders,
not less than 90 days nor more than 120 days prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is advanced by more than 20 days, or delayed by
more than 60 days, from the first anniversary of the preceding year's annual
meeting, a stockholder's notice must be so received not earlier than the one
hundred twentieth day prior to such annual meeting and not later than the close
of business on the later of (A) the ninetieth day prior to such annual meeting
and (B) the tenth day following the day on which notice of the date of such
annual meeting was mailed or public disclosure of the date of such annual
meeting was made, whichever first occurs; or (y) in the case of an election of
directors at a special meeting of stockholders, not earlier than the one hundred
twentieth day prior to such special meeting and not later than the close of
business on the later of (i) the ninetieth day prior to such special meeting and
(ii) the tenth day following the day on which notice of the date of such special
meeting was mailed or public disclosure of the date of such special meeting was
made, whichever first occurs.
The stockholder's notice to the Secretary shall set forth: (a) as to each
proposed nominee (i) such person's name, age, business address and, if known,
residence address, (ii) such person's principal occupation or employment, (iii)
the class and number of shares of stock of the Corporation which are
beneficially owned by such person, and (iv) any other information concerning
such person that must be disclosed as to nominees in proxy solicitations
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"); (b) as to the stockholder giving the notice (i) such
stockholder's name and address, as they appear on the Corporation's books, (ii)
the class and number of shares of stock of the Corporation which are owned,
beneficially and of record, by such stockholder, (iii) a description of all
arrangements or understandings between such 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, (iv) a
representation that such stockholder intends to appear in person at the meeting
to nominate the person(s) named in its notice; and (v) a representation whether
the stockholder intends or is part of a group which intends (a) to deliver a
proxy statement and/or form of proxy to holders of at least the percentage of
the Corporation's outstanding capital stock required to elect the nominee and/or
(b) otherwise to solicit proxies from stockholders in support of such nomination
and (c) as to the beneficial owner, if any, on whose behalf the nomination is
being made (i) such beneficial owner's name and address, (ii) the
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class and number of shares of stock of the Corporation which are beneficially
owned by such beneficial owner, (iii) a description of all arrangements or
understandings between such beneficial owner and each proposed nominee and any
other person or persons (including their names) pursuant to which the
nomination(s) are to be made and (iv) a representation whether the beneficial
owner intends or is part of a group which intends (a) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the
Corporation's outstanding capital stock required to elect the nominee and/or (b)
otherwise to solicit proxies from stockholders in support of such nomination. In
addition, to be effective, the stockholder's notice must be accompanied by the
written consent of the proposed nominee to serve as a director if elected. The
Corporation may require any proposed nominee to furnish such other information
as may reasonably be required to determine the eligibility of such proposed
nominee to serve as a director of the Corporation.
(c) The chairman of any meeting shall, if the facts warrant, determine that
a nomination was not made in accordance with the provisions of this Section 1.9
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination is made or solicited (or is part of a group which solicited) or
did not so solicit, as the case may be, proxies in support of such stockholder's
nominee in compliance with the representations with respect thereto required by
this Section 1.9), and if the chairman should so determine, the chairman shall
so declare to the meeting and the defective nomination shall be disregarded.
(d) Except as otherwise required by law, nothing in this Section 1.9 shall
obligate the Corporation or the Board of Directors to include in any proxy
statement or other stockholder communication distributed on behalf of the
Corporation or the Board of Directors information with respect to any nominee
for director submitted by a stockholder.
(e) Notwithstanding the foregoing provisions of this Section 1.9, if the
stockholder (or a qualified representative of the stockholder) does not appear
at the annual or special meeting of stockholders of the Corporation to present a
nomination, such nomination shall be disregarded, notwithstanding that proxies
in respect of such vote may have been received by the Corporation.
(f) For purposes of this Section 1.9, "public disclosure" shall include
disclosure in a press release reported by the Dow Jones News Service, Associated
Press 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 Exchange Act.
1.10 Notice of Business at Annual Meetings.
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(a) At any annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (i) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (ii) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (iii) properly brought before the
meeting by a stockholder. For business to be properly brought before an annual
meeting by a stockholder, (i) if such business relates to the election of
directors of the Corporation, the procedures in Section 1.9 must be complied
with and (ii) if such business relates
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to any other matter, the stockholder must (x) have given timely notice thereof
in writing to the Secretary in accordance with the procedures set forth in
Section 1.10(b) and (y) be a stockholder of record on the date of the giving of
such notice and on the record date for the determination of stockholders
entitled to vote at such annual meeting.
(b) To be timely, a stockholder's notice must be received in writing by the
Secretary at the principal executive offices of the Corporation not less than 90
days nor more than 120 days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is advanced by more than 20 days, or delayed by more than 60
days, from the first anniversary of the preceding year's annual meeting, a
stockholder's notice must be so received not earlier than the one hundred
twentieth day prior to such annual meeting and not later than the close of
business on the later of (A) the ninetieth day prior to such annual meeting and
(B) the tenth day following the day on which notice of the date of such annual
meeting was mailed or public disclosure of the date of such annual meeting was
made, whichever first occurs.
The stockholder's notice to the Secretary shall set forth as to each matter
the stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting, the
reasons for conducting such business at the annual meeting, the proposed text of
the stockholder proposal and, in the case of a proposal to amend any of the
Corporation's governing documents (including, without limitation, the
Corporation's By -laws and Certificate of Incorporation), the text of such
amendment, (ii) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business, and the name and address of the
beneficial owner, if any, on whose behalf the proposal is made, (iii) the class
and number of shares of stock of the Corporation which are owned, of record and
beneficially, by the stockholder and beneficial owner, if any, (iv) a
description of all arrangements or understandings between such stockholder or
such beneficial owner, if any, and any other person or persons (including their
names) in connection with the proposal of such business by such stockholder and
any material interest of the stockholder or such beneficial owner, if any, in
such business, (v) a representation that such stockholder intends to appear in
person at the annual meeting to bring such business before the meeting and (vi)
a representation whether the stockholder or the beneficial owner, if any,
intends or is part of a group which intends (a) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of the Corporation's
outstanding capital stock required to approve or adopt the proposal and/or (b)
otherwise to solicit proxies from stockholders in support of such proposal.
Notwithstanding anything in these By-laws to the contrary, no business shall be
conducted at any annual meeting of stockholders except in accordance with the
procedures set forth in this Section 1.10; provided that any stockholder
proposal which complies with Rule 14a-8 of the proxy rules (or any successor
provision) promulgated under the Securities Exchange Act of 1934, as amended,
and is to be included in the Corporation's proxy statement for an annual meeting
of stockholders shall be deemed to comply with the requirements of this Section
1.10.
(c) The chairman of any meeting shall, if the facts warrant, determine that
business was not properly brought before the meeting in accordance with the
provisions of this Section 1.10 (including whether the stockholder or beneficial
owner, if any, on whose behalf the proposal is made or solicited (or is part of
a group which solicited) or did not so solicit, as the case may be, proxies in
support of such stockholder's proposal in compliance with the
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representations with respect thereto required by this Section 1.10), and if the
chairman should so determine, the chairman shall so declare to the meeting and
such business shall not be brought before the meeting.
(d) In the event a stockholder provides notice of business to be conducted
at an annual meeting of the Corporation in accordance with this Section 1.10,
such stockholder or such stockholder's representative (who is qualified under
Delaware law to present such proposal on such stockholder's behalf) must attend
the meeting in person to present such proposal.
(e) Notwithstanding the foregoing provisions of this Section 1.10, if the
stockholder (or a qualified representative of the stockholder) does not appear
at the annual or special meeting of stockholders of the Corporation to present
business, such proposed business shall not be transacted, notwithstanding that
proxies in respect of such vote may have been received by the Corporation.
(f) For the purposes of this Section 1.10, "public disclosure" shall
include disclosure in a press release reported by the Dow Jones News Service,
Associated Press 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 Exchange Act.
1.11 Conduct of Meetings.
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(a) Chairman of Meeting. Meetings of stockholders shall be presided over by
the Chairman of the Board, if any, or in the Chairman's absence by the Vice
Chairman of the Board, if any, or in the Vice Chairman's absence by the
President, or in the President's absence by a Vice President, or in the absence
of all of the foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation by a chairman chosen by vote of
the stockholders at the meeting. The Secretary shall act as secretary of the
meeting, but in the Secretary's absence the chairman of the meeting may appoint
any person to act as secretary of the meeting.
(b) Rules, Regulations and Procedures. The Board of Directors of the
Corporation may adopt by resolution such rules, regulations and procedures for
the conduct of any meeting of stockholders of the Corporation as it shall deem
appropriate including, without limitation, such guidelines and procedures as it
may deem appropriate regarding the participation by means of remote
communication of stockholders and proxyholders not physically present at a
meeting. Except to the extent inconsistent with such rules, regulations and
procedures as adopted by the Board of Directors, the chairman of any meeting of
stockholders 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 appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as shall be determined; (iv)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (v) limitations on the time allotted to
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questions or comments by participants. 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 the rules of parliamentary
procedure.
(c) Closing of Polls. The chairman of the meeting shall announce at the
meeting when the polls for each matter to be voted upon at the meeting will be
opened and closed. If no announcement is made, the polls shall be deemed to have
opened when the meeting is convened and closed upon the final adjournment of the
meeting. After the polls close, no ballots, proxies or votes or any revocations
or changes thereto may be accepted.
(d) Inspectors of Election. In advance of any meeting of stockholders, the
Board of Directors, the Chairman of the Board or the President shall appoint one
or more inspectors or election to act at the meeting and make a written report
thereof. One or more other persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is present,
ready and willing to act at a meeting of stockholders, the chairman of the
meeting shall appoint one or more inspectors to act at the meeting. Unless
otherwise required by law, inspectors may be officers, employees or agents of
the Corporation. Each inspector, before entering upon the discharge of such
inspector's duties, shall take and sign an oath faithfully to execute the duties
of inspector with strict impartiality and according to the best of such
inspector's ability. The inspector shall have the duties prescribed by law and
shall take charge of the polls and, when the vote in completed, shall make a
certificate of the result of the vote taken and of such other facts as may be
required by law.
ARTICLE II
DIRECTORS
2.1 General Powers. The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the Corporation except as otherwise provided by law, the
Certificate of Incorporation or these By-laws.
2.2 Number, Election and Qualification. The number of directors which shall
constitute the whole Board of Directors shall be determined from time to time by
resolution of the Board of Directors, but in no event shall be less than one.
The directors shall be elected at the annual meeting of stockholders by such
stockholders as have the right to vote on such election. Directors need not be
stockholders of the Corporation.
2.3 Terms of Office; Vacancies. At each annual meeting, the stockholders
shall elect directors each of whom shall hold office for a term of one year or
until his or her successor is duly elected and qualified, subject to such
director's earlier death, resignation, disqualification or removal. Unless
otherwise provided by law or the Certificate of Incorporation, any newly created
directorship or any vacancy occurring in the Board of Directors for any cause
may be filled only by a majority of the remaining members of the Board of
Directors, although such majority is less than a quorum, and each director so
elected shall hold office until the expiration of the term of office of the
director whom he has replaced or until his or her successor is elected and
qualified.
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2.4 Quorum. A majority of the directors at any time in office shall
constitute a quorum for the transaction of business. If at any meeting of the
Board of Directors there shall be less than such a quorum, a majority of the
directors present may adjourn the meeting from time to time without further
notice other than announcement at the meeting, until a quorum shall be present.
2.5 Action at Meeting. Every act or decision done or made by a majority of
the directors present at a meeting duly held at which a quorum is present shall
be regarded as the act of the Board of Directors unless a greater number is
required by law, by the Certificate of Incorporation or by these By-laws.
2.6 Removal. Unless otherwise provided in the Certificate of Incorporation,
directors of the Corporation may be removed with or without cause by the
affirmative vote of the holders of a majority in voting power of shares of the
capital stock of the Corporation entitled to vote in any annual election of
directors.
2.7 Resignation. Any director may resign by delivering a resignation in
writing or by electronic transmission to the Corporation at its principal office
or to the Chairman of the Board, the President or the Secretary. Such
resignation shall be effective upon receipt unless it is specified to be
effective at some later time or upon the happening of some later event.
2.8 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place as shall be determined from time to
time by the Board of Directors; provided that any director who is absent when
such a determination is made shall be given notice of the determination. A
regular meeting of the Board of Directors may be held without notice immediately
after and at the same place as the annual meeting of stockholders.
2.9 Special Meetings. Special meetings of the Board of Directors may be
held at any time and place designated in a call by the Chairman of the Board,
the President, two or more directors, or by one director in the event that there
is only a single director in office.
2.10 Notice of Special Meetings. Notice of any special meeting of directors
shall be given to each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be duly given to each director (i)
by giving notice to such director in person or by telephone at least 24 hours in
advance of the meeting, (ii) by sending a telegram, telecopy or electronic mail,
or delivering written notice by hand, to such director's last known business,
home or electronic mail address at least 48 hours in advance of the meeting, or
(iii) by sending written notice, via first-class mail or reputable overnight
courier, to such director's last known business or home address at least 72
hours in advance of the meeting. A notice or waiver of notice of a meeting of
the Board of Directors need not specify the purposes of the meeting.
2.11 Meetings by Conference Communications Equipment. Directors may
participate in meetings of the Board of Directors or any committee thereof 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 by such means shall constitute presence in person at such meeting.
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2.12 Action by Consent. 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 or committee, as the case may be,
consent to the action in writing or by electronic transmission, and the written
consents or electronic transmissions are filed with the minutes of proceedings
of the Board or committee.
2.13 Organization. Meetings of the Board of Directors shall be presided
over by the Chairman of the Board, if any, or in his or her absence by the Vice
Chairman of the Board, if any, or in his or her absence by the President, or in
their absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his or her absence the chairman of the meeting
may appoint any person to act as secretary of the meeting.
2.14 Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of the
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 place of any such absent or disqualified member. Any committee, to
the extent provided in the resolution of the Board of Directors and subject to
the provisions of law, 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. Each such committee shall keep minutes and make
such reports as the Board of Directors may from time to time request. Except as
the Board of Directors may otherwise determine, any committee may make rules for
the conduct of its business, but unless otherwise provided by the directors or
in such rules, its business shall be conducted as nearly as possible in the same
manner as is provided in these By-laws for the Board of Directors.
2.15 Compensation of Directors. Directors may be paid such compensation for
their services and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such payment shall
preclude any director from serving the Corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
ARTICLE III
OFFICERS
3.1 Titles. The officers of the Corporation shall consist of a President, a
Chief Financial Officer, a Secretary, a Treasurer and such other officers with
such other titles as the Board of Directors may determine, including a Chairman
of the Board, a Vice Chairman of the Board, and one or more Vice Presidents,
Assistant Treasurers, and Assistant Secretaries. The Board of Directors may
appoint such other officers as it may deem appropriate.
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3.2 Election. The President, Chief Financial Officer, Treasurer and
Secretary shall be elected annually by the Board of Directors at its first
meeting following the annual meeting of stockholders. Other officers may be
appointed by the Board of Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more
offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-laws, each officer shall hold office until such
officer's successor is elected and qualified, unless a different term is
specified in the resolution electing or appointing such officer, or until such
officer's earlier death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering a written
resignation to the Corporation at its principal office or to the Chief Executive
Officer or the Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some later time or upon the happening
of some later event.
Any officer may be removed at any time, with or without cause, by vote of a
majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an officer for
any period following such officer's resignation or removal, or any right to
damages on account of such removal, whether such officer's compensation be by
the month or by the year or otherwise, unless such compensation is expressly
provided in a duly authorized written agreement with the Corporation.
3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled for such period
as it may determine any offices other than those of President, Chief Financial
Officer, Treasurer and Secretary. Each such successor shall hold office for the
unexpired term of such officer's predecessor and until a successor is elected
and qualified, or until such officer's earlier death, resignation or removal.
3.7 Chairman of the Board. The Board of Directors may appoint from its
members a Chairman of the Board. If the Board of Directors appoints a Chairman
of the Board, such Chairman shall perform such duties and possess such powers as
are assigned by the Board of Directors and, if the Chairman of the Board is also
designated as the Corporation's Chief Executive Officer, shall have the powers
and duties of the Chief Executive Officer prescribed in Section 3.8 of these
By-laws. Unless otherwise provided by the Board of Directors, the Chairman of
the Board shall preside at all meetings of the Board of Directors and
stockholders.
3.8 President; Chief Executive Officer. Unless the Board of Directors has
designated the Chairman of the Board or another person as the Corporation's
Chief Executive Officer, the President shall be the Chief Executive Officer of
the Corporation. The Chief Executive Officer shall have general charge and
supervision of the business of the Corporation subject to the direction of the
Board of Directors. The President shall perform such other duties and shall have
such other powers as the Board of Directors and the Chief Executive Officer (if
the Chairman of the Board or another person is serving in such position) may
from time to time prescribe.
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3.9 Vice Presidents. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the Chief Executive Officer may
from time to time prescribe. In the event of the absence, inability or refusal
to act of the Chief Executive Officer, the President (if the President is not
the Chief Executive Officer), and then the Vice President (or if there shall be
more than one, the Vice Presidents in the order determined by the Board of
Directors), shall perform the duties of the Chief Executive Officer and when so
performing shall have all the powers of and be subject to all the restrictions
upon the Chief Executive Officer. The Board of Directors may assign to any Vice
President the title of Executive Vice President, Senior Vice President or any
other title selected by the Board of Directors.
3.10 Chief Financial Officer. The Chief Financial Officer shall keep, or
cause to be kept, the books and records of account of the Corporation. The Chief
Financial Officer shall deposit all monies and other valuables in the name and
to the credit of the Corporation with such depositories as may be designated
from time to time by resolution of the Board of Directors. He or she shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall render to the President and the Board, whenever they request
it, an account of all of his or her 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 from time to time by the
Board or as the Chief Financial Officer may from time to time delegate.
3.11 Secretary and Assistant Secretaries. The Secretary shall perform such
duties and shall have such powers as the Board of Directors or the Chief
Executive Officer may from time to time prescribe. In addition, the Secretary
shall perform such duties and have such powers as are incident to the office of
the secretary, including without limitation the duty and power to give notices
of all meetings of stockholders and special meetings of the Board of Directors,
to attend all meetings of stockholders and the Board of Directors and keep a
record of the proceedings, to maintain a stock ledger and prepare lists of
stockholders and their addresses as required, to be custodian of corporate
records and the corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the Chief Executive Officer or the Secretary may from
time to time prescribe. In the event of the absence, inability or refusal to act
of the Secretary, the Assistant Secretary (or if there shall be more than one,
the Assistant Secretaries in the order determined by the Board of Directors)
shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the chairman of the meeting shall designate a
temporary secretary to keep a record of the meeting.
3.12 Treasurer and Assistant Treasurers. The Treasurer shall perform such
duties and shall have such powers as may from time to time be assigned by the
Board of Directors or the Chief Executive Officer.
The Assistant Treasurers shall perform such duties and possess such powers
as the Board of Directors, the Chief Executive Officer or the Treasurer may from
time to time prescribe. In the event of the absence, inability or refusal to act
of the Treasurer, the Assistant Treasurer (or if
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there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors) shall perform the duties and exercise the powers of
the Treasurer.
3.13 Salaries. Officers of the Corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
ARTICLE IV
CAPITAL STOCK
4.1 Issuance of Stock. Unless otherwise voted by the stockholders and
subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the Corporation
or the whole or any part of any shares of the authorized capital stock of the
Corporation held in the Corporation's treasury may be issued, sold, transferred
or otherwise disposed of by vote of the Board of Directors in such manner, for
such lawful consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of Stock. Every holder of stock of the Corporation shall
be entitled to have a certificate, in such form as may be prescribed by law and
by the Board of Directors, certifying the number and class of shares owned by
such holder in the Corporation. Each such certificate shall be signed by, or in
the name of the Corporation by, the Chairman or Vice Chairman, if any, of the
Board of Directors, or the President or a Vice President, and the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation. Any or all of the signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, these By-laws,
applicable securities laws or any agreement among any number of stockholders or
among such holders and the Corporation shall have conspicuously noted on the
face or back of the certificate either the full text of the restriction or a
statement of the existence of such restriction.
There shall be set forth on the face or back of each certificate
representing shares of such class or series of stock of the Corporation a
statement that the Corporation will furnish without charge to each stockholder
who so requests a copy of the full text of 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.
4.3 Transfers. Except as otherwise established by rules and regulations
adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the Corporation by the surrender to the
Corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or the authenticity of
signature as the Corporation or its transfer agent may reasonably require.
Except as may be otherwise required by law, by the Certificate of Incorporation
or by these By-laws, the Corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to vote
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with respect to such stock, regardless of any transfer, pledge or other
disposition of such stock until the shares have been transferred on the books of
the Corporation in accordance with the requirements of these By-laws.
4.4 Lost, Stolen or Destroyed Certificates. The Corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to
have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board of Directors may require for the protection of the Corporation or any
transfer agent or registrar.
4.5 Fractional Shares. The Corporation may, but shall not be required to,
issue certificates for fractions of a share where necessary to effect authorized
transactions, or the Corporation may arrange for the disposition of fractional
interests by those entitled thereto or pay in cash the fair value of fractions
of a share as of the time when those entitled to receive such fractions are
determined, or it may issue scrip in registered or bearer form over the manual
or facsimile signature of an officer of the Corporation or of its agent,
exchangeable as therein provided for full shares, but such scrip shall not
entitle the holder to any rights of a stockholder except as therein provided.
4.6 Record Date. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders, or entitled to receive payment of any
dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 60 nor less than 10 days before
the date of such meeting, nor more than 60 days prior to any other action to
which such record date relates.
If no record date is fixed, 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 before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. If no record date is fixed, the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating to such purpose.
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.
ARTICLE V
INDEMNIFICATION
5.1 Right to Indemnification. The Corporation shall, to the fullest extent
permitted by Section 145 of the General Corporation Law of the State of
Delaware, as amended from time to time, indemnify each 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,
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administrative or investigative, by reason of the fact that he or she is or was,
or has agreed to become, a director or officer of the Corporation, or, while a
director or officer of the Corporation, is or was serving, or has agreed to
serve, at the request of the Corporation, as a director, officer or trustee of,
or in a similar capacity with, another corporation, partnership, joint venture,
trust or other enterprise (including any employee benefit plan) (all such
persons being referred to hereafter as an "Indemnitee"), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by or on behalf of an Indemnitee in
connection with such action, suit or proceeding and any appeal therefrom.
5.2 Notification; Assumption of Defense. As a condition precedent to his or
her right to be indemnified, the Indemnitee must notify the Corporation in
writing as soon as practicable of any action, suit, proceeding or investigation
involving him or her for which indemnity will or could be sought; provided,
however, that the failure to give such prompt notice shall not result in the
waiver or loss of any rights hereunder by Indemnitee unless, and only to the
extent that, the Corporation is actually prejudiced by such failure. With
respect to any action, suit, proceeding or investigation of which the
Corporation is so notified, the Corporation will be entitled to participate
therein at its own expense and/or to assume the defense thereof at its own
expense, with legal counsel reasonably acceptable to the Indemnitee.
Notwithstanding the foregoing, in any action, suit, proceeding or investigation
in which both the Corporation, on the one hand, and an Indemnitee, on the other
hand, are, or are reasonably likely to become, a party, such Indemnitee shall
have the right to employ separate counsel and to control its own defense of such
action, suit, proceeding or investigation if, in the reasonable opinion of
counsel to such Indemnitee, either (a) one or more defenses are available to the
Indemnitee that are not available to the Corporation or (b) a conflict or
potential conflict exists between the Corporation, on the one hand, and such
Indemnitee, on the other hand, that would make such separate representation
advisable.
5.3 Prepayment of Expenses. In the event that the Corporation does not
assume the defense of any action, suit, proceeding or investigation of which the
Corporation receives notice under this Article, the Corporation shall pay in
advance of the final disposition of such matter any expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or criminal
action, suit, proceeding or investigation or any appeal therefrom; provided,
however, that the payment of such expenses incurred by an Indemnitee in advance
of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced
in the event that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the Corporation as authorized in this Article,
which undertaking shall be accepted without reference to the financial ability
of the Indemnitee to make such repayment.
5.4 Indemnitee Initiation; Other Indemnification. The Corporation shall not
indemnify an Indemnitee seeking indemnification in connection with a proceeding
(or part thereof) initiated by such Indemnitee unless the initiation thereof was
approved by the Board of Directors of the Corporation. In addition, the
Corporation shall not indemnify an Indemnitee to the extent such Indemnitee is
reimbursed from the proceeds of insurance, and in the event the Corporation
makes any indemnification payments to an Indemnitee and such Indemnitee is
subsequently reimbursed from the proceeds of insurance, such Indemnitee shall
promptly refund
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such indemnification payments to the Corporation to the extent of such insurance
reimbursement. Notwithstanding the foregoing, if a claim for indemnification or
advancement of expenses under this Article V is not paid in full within thirty
days after a written claim therefor by the Indemnitee has been received by the
Corporation, the Indemnitee may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the Corporation shall have
the burden of proving that the Indemnitee is not entitled to the requested
indemnification or advancement of expenses under applicable law.
5.5 Entitlement to Indemnification. All determinations hereunder as to the
entitlement of an Indemnitee to indemnification or advancement of expenses shall
be made in each instance by (a) a majority vote of the directors of the
Corporation consisting of persons who are not at that time parties to the
action, suit or proceeding in question ("disinterested directors"), whether or
not a quorum, (b) a committee of such directors designated by majority vote of
such directors, even though less than a quorum, (c) a majority vote of a quorum
of the outstanding shares of stock of all classes entitled to vote for
directors, voting as a single class, which quorum shall consist of stockholders
who are not at that time parties to the action, suit or proceeding in question,
(d) independent legal counsel (who may, to the extent permitted by law, be
regular legal counsel to the Corporation), or (e) a court of competent
jurisdiction.
5.6 Non-Exclusivity of Rights. The indemnification rights provided in this
Article (i) shall not be deemed exclusive of any other rights to which an
Indemnitee may be entitled under any law, agreement or vote of stockholders or
disinterested directors or otherwise, and (ii) shall inure to the benefit of the
heirs, executors and administrators of the Indemnitees. The Corporation may, to
the extent authorized from time to time by its Board of Directors, grant
indemnification rights to other employees or agents of the Corporation or other
persons serving the Corporation and such rights may be equivalent to, or greater
or less than, those set forth in this Article.
5.7 Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
ARTICLE VI
GENERAL PROVISIONS
6.1 Fiscal Year. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the Corporation shall begin on the first
day of January of each year and end on the last day of December in each year.
6.2 Corporate Seal. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
6.3 Waiver of Notice. Whenever notice is required to be given by law, by
the Certificate of Incorporation or by these By-laws, a written waiver signed by
the person entitled to notice, or a waiver by electronic transmission by the
person entitled to notice, whether before, at
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or after the time stated in such notice, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
6.4 Contracts. The Board of Directors may authorize any person or persons,
in the name and on behalf of the Corporation, to enter into or execute and
deliver any and all deeds, bonds, mortgages, contracts and other obligations or
instruments, and such authority may be general or confined to specific
instances.
6.5 Proxies; Powers of Attorney; Other Instruments. The Chairman, the
President or any other person designated by either of them shall have the power
and authority to execute and deliver proxies, powers of attorney and other
instruments on behalf of the Corporation in connection with the rights and
powers incident to the ownership of stock or other securities by the
Corporation. The Chairman, the President or any other person authorized by proxy
or power of attorney executed and delivered by either of them on behalf of the
Corporation may attend and vote at any meeting of stockholders or
securityholders of any entity in which the Corporation may hold stock or other
securities, and may exercise on behalf of the Corporation any and all of the
rights and powers incident to the ownership of such stock or other securities at
any such meeting or in connection with any action by consent in lieu of a
meeting thereof, or otherwise as specified in the proxy or power of attorney so
authorizing any such person. The Board of Directors, from time to time, may
confer like powers upon any other person.
6.6 Financial Reports. The Board of Directors may appoint the primary
financial officer or other fiscal officer and/or the Secretary or any other
officer to cause to be prepared and furnished to stockholders entitled thereto
any special financial notice and/or financial statement, as the case may be,
which may be required by any provision of law.
6.7 Evidence of Authority. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the Corporation,
shall as to all persons who rely on the certificate in good faith be conclusive
evidence of such action.
6.8 Certificate of Incorporation. All references in these By-laws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the Corporation, as amended and in effect from time to time.
6.9 Transactions with Interested Parties. No contract or transaction
between the Corporation and one or more of the directors or officers, or between
the Corporation and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or a committee of the
Board of Directors at which the contract or transaction is authorized or solely
because any such director's or officer's votes are counted for such purpose, if:
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(a) The material facts as to the director's or officer's relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of
the disinterested directors, even though the disinterested directors be less
than a quorum;
(b) The material facts as to the director's or officer's relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
6.10 Location and Form of Records. The books and records of the Corporation
may be kept at such place or places within or outside the State of Delaware as
the Board of Directors or the respective officers in charge thereof may from
time to time determine. Any records maintained by the Corporation in the regular
course of its business, including its stock ledger, books of account, and minute
books, 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.
6.11 Severability. Any determination that any provision of these By-laws is for
any reason inapplicable, illegal or ineffective shall not affect or invalidate
any other provision of these By-laws.
6.12 Pronouns. All pronouns used in these By-laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the identity of the
person or persons may require.
ARTICLE VII
AMENDMENTS
These By-laws may be altered, amended or repealed, in whole or in part, or
new By-laws may be adopted by the Board of Directors or by the stockholders as
provided in the Certificate of Incorporation.
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