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Exhibit 3.4
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ATHERSYS, INC.
BYLAWS
As Adopted and in
Effect on __________, 2000
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TABLE OF CONTENTS
Page
STOCKHOLDERS' MEETINGS ................................................ 1
1. Time and Place of Meetings ............................... 1
2. Annual Meeting ........................................... 1
3. Special Meetings ......................................... 1
4. Notice of Meetings ....................................... 1
5. Inspectors ............................................... 2
6. Quorum ................................................... 2
7. Voting; Proxies .......................................... 2
8. Order of Business ........................................ 2
DIRECTORS ............................................................. 4
9. Function ................................................. 4
10. Number, Election, and Terms .............................. 4
11. Vacancies and Newly Created Directorships ................ 4
12. Removal .................................................. 4
13. Nominations of Directors; Election ....................... 5
14. Resignation .............................................. 6
15. Regular Meetings ......................................... 6
16. Special Meetings ......................................... 6
17. Quorum ................................................... 6
18. Participation in Meetings by Remote Communications ....... 6
19. Committees ............................................... 7
20. Compensation ............................................. 7
21. Rules .................................................... 8
NOTICES ............................................................... 8
22. Generally ................................................ 8
23. Waivers .................................................. 8
OFFICERS .............................................................. 8
24. Generally ................................................ 8
25. Compensation ............................................. 8
26. Succession ............................................... 9
27. Authority and Duties ..................................... 9
STOCK ................................................................. 9
28. Certificates ............................................. 9
29. Classes of Stock ......................................... 9
30. Lost, Stolen or Destroyed Certificates ................... 9
31. Record Dates ............................................. 9
GENERAL ............................................................... 10
32. Fiscal Year .............................................. 10
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33. Seal ................................................... 10
34. Reliance Upon Books, Reports, and Records .............. 10
35. Time Periods ........................................... 10
36. Amendments ............................................. 10
37. Certain Defined Terms .................................. 11
(ii)
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STOCKHOLDERS' MEETINGS
1. Time and Place of Meetings. All meetings of the stockholders for the
election of the members of the Board of Directors (the "Directors") or for any
other purpose will be held at such time and place, within or without the State
of Delaware, as may be designated by the Board of Directors of the Company (the
"Board") or, in the absence of a designation by the Board, the Chairman of the
Board (the "Chairman"), the Chief Executive Officer, the President, or the
Secretary, and stated in the notice of meeting. Notwithstanding the foregoing,
the Board may, in its sole discretion, determine that meetings of the
stockholders shall not be held at any place, but may instead be held by means of
remote communication, subject to such guidelines and procedures as the Board may
adopt from time to time. The Board may postpone and reschedule any previously
scheduled annual or special meeting of the stockholders.
2. Annual Meeting. An annual meeting of the stockholders will be held at
such date and time as may be designated from time to time by the Board, at which
meeting the stockholders will elect by a plurality vote the Directors to succeed
those Directors whose terms expire at such meeting and will transact such other
business as may properly be brought before the meeting in accordance with Bylaw
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3. Special Meetings. Special meetings of the stockholders may be called
only by (i) the Chairman, (ii) the President, or (iii) the Secretary within 10
calendar days after receipt of the written request of a majority of the total
number of Directors that the Company would have if there were no vacancies (the
"Whole Board"). Any such request by a majority of the Whole Board must be sent
to the Chairman and the Secretary and must state the purpose or purposes of the
proposed meeting. Special meetings of holders of the outstanding Preferred
Stock, $0.01 par value, of the Company (the "Preferred Stock"), if any, may be
called in the manner and for the purposes provided in the applicable Preferred
Stock Designation (as defined in the Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation")).
4. Notice of Meetings. Written notice of every meeting of the stockholders,
stating the place, if any, date, and time thereof, the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, will be given
not less than 10 nor more than 60 calendar days before the date of the meeting
to each stockholder of record entitled to vote at such meeting, except as
otherwise provided herein or by law. When a meeting is adjourned to another
place, date, or time, written notice need not be given of the adjourned meeting
if the place, if any, date and time thereof, and the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such adjourned meeting are announced at the
meeting at which the adjournment is taken; provided, however, that if the
adjournment is for more than 30 calendar days, or if after the adjournment a new
record date is fixed for the adjourned meeting, written notice of the place, if
any, date, and time thereof, and the means of remote communications, if any, by
which stockholders and proxy holders may be deemed to be present in person and
vote at such adjourned meeting must be given in conformity herewith. At any
adjourned meeting, any business may be transacted which properly could have been
transacted at the original meeting.
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5. Inspectors. The Board may appoint one or more inspectors of election to
act as judges of the voting and to determine those entitled to vote at any
meeting of the stockholders, or any adjournment thereof, in advance of such
meeting. The Board may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the presiding officer of the meeting may
appoint one or more substitute inspectors.
6. Quorum. Except as otherwise provided by law or in a Preferred Stock
Designation, the holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, will
constitute a quorum at all meetings of the stockholders for the transaction of
business thereat. If, however, such quorum is not present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, will have the power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum is present or represented.
7. Voting; Proxies. Except as otherwise provided by law, by the Company's
Certificate of Incorporation, or in a Preferred Stock Designation, each
stockholder will be entitled at every meeting of the stockholders to one vote
for each share of stock having voting power standing in the name of such
stockholder on the books of the Company on the record date for the meeting and
such votes may be cast either in person or by proxy. Every proxy must be in a
form permitted by Section 212 of the Delaware General Corporation Law (or any
successor provision). Without affecting any vote previously taken, a stockholder
may revoke any proxy that is not irrevocable by attending the meeting and voting
in person, by revoking the proxy by giving notice to the Secretary of the
Company or by later appointment of proxy. The vote upon any question brought
before a meeting of the stockholders may be by voice vote, unless otherwise
required by the Certificate of Incorporation or these Bylaws or unless the
Chairman or the holders of a majority of the outstanding shares of all classes
of stock entitled to vote thereon present in person or by proxy at such meeting
otherwise determine. Every vote taken by written ballot will be counted by the
inspectors of election. When a quorum is present at any meeting, the affirmative
vote of the holders of a majority of the stock present in person or represented
by proxy at the meeting and entitled to vote on the subject matter and which has
actually been voted will be the act of the stockholders, except in the election
of Directors or as otherwise provided in these Bylaws, the Certificate of
Incorporation, a Preferred Stock Designation, or by law.
8. Order of Business. (a) The Chairman, or such other officer of the
Company designated by a majority of the Whole Board, will call meetings of the
stockholders to order and will act as presiding officer thereof. Unless
otherwise determined by the Board prior to the meeting, the presiding officer of
the meeting of the stockholders will also determine the order of business and
have the authority in his or her sole discretion to regulate the conduct of any
such meeting, including without limitation by imposing restrictions on the
persons (other than stockholders of the Company or their duly appointed proxies)
that may attend any such stockholders' meeting, by ascertaining whether any
stockholder or his proxy may be excluded from any meeting of the stockholders
based upon any determination by the presiding officer, in his sole discretion,
that any such person has unduly disrupted or is likely to disrupt the
proceedings thereat, and by determining the circumstances in which any person
may make a statement or ask questions at any meeting of the stockholders.
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(b) At an annual meeting of the stockholders, only such business will be
conducted or considered as is properly brought before the annual meeting. To be
properly brought before an annual meeting, business must be (i) specified in the
notice of the annual meeting (or any supplement thereto) given by or at the
direction of the Board in accordance with Bylaw 4, (ii) otherwise properly
brought before the meeting by the presiding officer or by or at the direction of
a majority of the Whole Board, or (iii) otherwise properly requested to be
brought before the annual meeting by a stockholder of the Company in accordance
with Bylaw 8(c).
(c) For business to be properly requested by a stockholder to be brought
before an annual meeting, (i) the stockholder must be a stockholder of the
Company of record at the time of the giving of the notice for such annual
meeting provided for in these Bylaws, (ii) the stockholder must be entitled to
vote at such meeting, (iii) the stockholder must have given timely notice
thereof in writing to the Secretary and (iv) if the stockholder, or the
beneficial owner on whose behalf any business is brought before the meeting, has
provided the Company with a Proposal Solicitation Notice, as that term is
defined in this Bylaw 8(c) below, such stockholder or beneficial owner must have
delivered a proxy statement and form of proxy to the holders of at the least the
percentage of shares of the Company entitled to vote required to approve such
business that the stockholder proposes to bring before the annual meeting and
included in such materials the Proposal Solicitation Notice. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Company not less than 60 nor more than 90
calendar days prior to the first anniversary of the date on which the Company
first mailed its proxy materials for the preceding year's annual meeting of
stockholders; provided, however, that if the date of the annual meeting is
advanced more than 30 calendar days prior to or delayed by more than 30 calendar
days after the anniversary of the preceding year's annual meeting, notice by the
stockholder to be timely must be so delivered not later than the close of
business on the later of the 90th calendar day prior to such annual meeting or
the 10th calendar day following the day on which public disclosure of the date
of such meeting is first made. In no event shall the public disclosure of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. A stockholder's notice to the Secretary
must set forth as to each matter the stockholder proposes to bring before the
annual meeting (A) a description in reasonable detail of the business desired to
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (B) the name and address, as they appear on the Company's
books, of the stockholder proposing such business and the beneficial owner, if
any, on whose behalf the proposal is made, (C) the class or series and number of
shares of capital stock of the Company that are owned beneficially and of record
by the stockholder proposing such business and by the beneficial owner, if any,
on whose behalf the proposal is made, (D) a description of all arrangements or
understandings among such stockholder 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 such stockholder in such business, (E)
whether either such stockholder or beneficial owner intends to deliver a proxy
statement and form of proxy to holders of at least the percentage of shares of
the Company entitled to vote required to approve the proposal (an affirmative
statement of such intent, a "Proposal Solicitation Notice"), and (F) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the annual meeting.
Notwithstanding the foregoing provisions of this Bylaw 8(c), a stockholder must
also comply with all applicable requirements of the Securities Exchange Act of
1934 and the rules and regulations thereunder (the "Exchange Act") with respect
to matters set forth in this Bylaw 8(c).
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Nothing in this Bylaw 8(c) will be deemed to affect any rights of stockholders
to request inclusion of proposals in the Company's proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
(d) At a special meeting of stockholders, only such business may be
conducted or considered as is properly brought before the meeting. To be
properly brought before a special meeting, business must be (i) specified in the
notice of the meeting (or any supplement thereto) given by or at the direction
of the Chairman, the President or a majority of the Whole Board in accordance
with Bylaw 4 or (ii) otherwise properly brought before the meeting by the
presiding officer or by or at the direction of a majority of the Whole Board.
(e) The determination of whether any business sought to be brought before
any annual or special meeting of the stockholders is properly brought before
such meeting in accordance with this Bylaw 8 will be made by the presiding
officer of such meeting. If the presiding officer determines that any business
is not properly brought before such meeting, he or she will so declare to the
meeting and any such business will not be conducted or considered.
DIRECTORS
9. Function. The business and affairs of the Company will be managed under
the direction of its Board.
10. Number, Election, and Terms. Subject to the rights, if any, of any
series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, and to the minimum and maximum
number of authorized Directors provided in the Certificate of Incorporation, the
authorized number of Directors may be determined from time to time only (i) by a
vote of a majority of the Whole Board or (ii) by the affirmative vote of the
holders of at least 80% of the Voting Stock, voting together as a single class.
The Directors, other than those who may be elected by the holders of any series
of the Preferred Stock, will be classified with respect to the time for which
they severally hold office in accordance with the Certificate of Incorporation.
11. Vacancies and Newly Created Directorships. Subject to the rights, if
any, of the holders of any series of Preferred Stock to elect additional
Directors under circumstances specified in a Preferred Stock Designation, newly
created directorships resulting from any increase in the number of Directors and
any vacancies on the Board resulting from death, resignation, disqualification,
removal, or other cause will be filled solely by the affirmative vote of a
majority of the remaining Directors then in office, even though less than a
quorum of the Board, or by a sole remaining Director. Any Director elected in
accordance with the preceding sentence will hold office for the remainder of the
full term of the class of Directors in which the new directorship was created or
the vacancy occurred and until such Director's successor is elected and
qualified. No decrease in the number of Directors constituting the Board will
shorten the term of an incumbent Director.
12. Removal. Subject to the rights, if any, of the holders of any series of
Preferred Stock to elect additional Directors under circumstances specified in a
Preferred Stock
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Designation, any Director may be removed from office by the stockholders only
for cause and only in the manner provided in the Certificate of Incorporation
and, if applicable, any amendment to this Bylaw 12.
13. Nominations of Directors; Election. (a) Subject to the rights, if any,
of the holders of any series of Preferred Stock to elect additional Directors
under circumstances specified in a Preferred Stock Designation, only persons who
are nominated in accordance with this Bylaw 13 will be eligible for election at
a meeting of stockholders as Directors of the Company.
(b) Nominations of persons for election as Directors of the Company may be
made only at an annual meeting of stockholders (i) by or at the direction of the
Board or (ii) by any stockholder that is a stockholder of record at the time of
giving of notice provided for in this Bylaw 13, who is entitled to vote for the
election of Directors at such annual meeting, and who complies with the
procedures set forth in this Bylaw 13. If a stockholder, or a beneficial owner
on whose behalf any such nomination is made, has provided the Company with a
Nomination Solicitation Notice, as that term is defined in this Bylaw 13 below,
such stockholder or beneficial owner must have delivered a proxy statement and
form of proxy to the holders of at least the percentage of shares of the Company
entitled to vote required to approve such nomination and included in such
materials the Nomination Solicitation Notice. All nominations by stockholders
must be made pursuant to timely notice in proper written form to the Secretary.
(c) To be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Company not less than 60 nor
more than 90 calendar days prior to the first anniversary of the date on which
the Company first mailed its proxy materials for the preceding year's annual
meeting of stockholders; provided, however, that if the date of the annual
meeting is advanced more than 30 calendar days prior to or delayed by more than
30 calendar days after the anniversary of the preceding year's annual meeting,
notice by the stockholder to be timely must be so delivered not later than the
close of business on the later of the 90th calendar day prior to such annual
meeting or the 10th calendar day following the day on which public disclosure of
the date of such meeting is first made. In no event shall the public disclosure
of an adjournment of an annual meeting commence a new time period for the giving
of a stockholder's notice as described above. To be in proper written form, such
stockholder's notice must set forth or include (i) the name and address, as they
appear on the Company's books, of the stockholder giving the notice and of the
beneficial owner, if any, on whose behalf the nomination is made; (ii) a
representation that the stockholder giving the notice is a holder of record of
stock of the Company entitled to vote at such annual meeting and intends to
appear in person or by proxy at the annual meeting to nominate the person or
persons specified in the notice; (iii) the class and number of shares of stock
of the Company owned beneficially and of record by the stockholder giving the
notice and by the beneficial owner, if any, on whose behalf the nomination is
made; (iv) a description of all arrangements or understandings between or among
any of (A) the stockholder giving the notice, (B) the beneficial owner on whose
behalf the notice is given, (C) each nominee, and (D) any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder giving the notice; (v) such other
information regarding each nominee proposed by the stockholder giving the notice
as would be required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission had the nominee been
nominated, or intended to be nominated, by the Board; (vi) the signed consent of
each nominee
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to serve as a Director of the Company if so elected; (vii) whether either such
stockholder or beneficial owner intends to deliver a proxy statement and form of
proxy to holders of at least the percentage of shares of the Company entitled to
vote required to elect such nominee or nominees (an affirmative statement of
such intent, a "Nomination Solicitation Notice"); and (viii) a representation
that such stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in the notice. At the request of the Board, any
person nominated by the Board for election as a Director must furnish to the
Secretary that information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee. The presiding officer of any annual
meeting will, if the facts warrant, determine that a nomination was not made in
accordance with the procedures prescribed by this Bylaw 13, and if he or she
should so determine, he or she will so declare to the meeting and the defective
nomination will be disregarded. Notwithstanding the foregoing provisions of this
Bylaw 13, a stockholder must also comply with all applicable requirements of the
Exchange Act with respect to the matters set forth in this Bylaw 13.
14. Resignation. Any Director may resign at any time by giving notice in
writing or by electronic transmission of his or her resignation to the Chairman
or the Secretary.
15. Regular Meetings. Regular meetings of the Board may be held immediately
after the annual meeting of the stockholders and at such other time and place
either within or without the State of Delaware as may from time to time be
determined by the Board. Notice of regular meetings of the Board need not be
given.
16. Special Meetings. Special meetings of the Board may be called by the
Chairman or the President on one day's notice to each Director by whom such
notice is not waived, given either personally or by mail, courier, telephone,
telegram, telex, facsimile, or similar medium of communication, and will be
called by the Chairman or the President, in like manner and on like notice, on
the written request of a majority of the Whole Board. Special meetings of the
Board may be held at such time and place either within or without the State of
Delaware as is determined by the Board or specified in the notice of any such
meeting.
17. Quorum. At all meetings of the Board, a majority of the Whole Board
will constitute a quorum for the transaction of business. Except for the
designation of committees as hereinafter provided and except for actions
required by these Bylaws or the Certificate of Incorporation to be taken by a
majority of the Whole Board, the act of a majority of the Directors present at
any meeting at which there is a quorum will be the act of the Board. If a quorum
is not present at any meeting of the Board, the Directors present thereat may
adjourn the meeting from time to time to another place, time, or date, without
notice other than announcement at the meeting, until a quorum is present.
18. Participation in Meetings by Remote Communications. Members of the
Board or any committee designated by the Board may participate in a meeting of
the Board or any such committee, as the case may be, by means of telephone
conference or other means by which all persons participating in the meeting can
hear each other, and such participation in a meeting will constitute presence in
person at the meeting.
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19. Committees. (a) The Board, by resolution passed by a majority of the
Whole Board, will designate an executive committee (the "Executive Committee")
of not less than [THREE] members of the Board, one of whom will be the Chairman.
The Executive Committee will have and may exercise the powers of the Board,
except the power to amend these Bylaws or the Certificate of Incorporation
(except, to the extent authorized by a resolution of the Whole Board, to fix the
designation, preferences, and other terms of any series of Preferred Stock),
fill any vacancy on the Executive Committee, adopt an agreement of merger or
consolidation, authorize the issuance of stock, declare a dividend, or recommend
to the stockholders the sale, lease, or exchange of all or substantially all of
the Company's property and assets, a dissolution of the Company, or a revocation
of a dissolution, and except as otherwise provided by law.
(b) The Board, by resolution passed by a majority of the Whole Board, may
designate one or more additional committees. Each such committee will consist of
one or more Directors and will have such lawfully delegable powers and duties as
the Board may confer; provided, however, that no committee shall exercise any
power or duty expressly required by the Delaware General Corporation Law, as it
may be amended from time to time, to be acted upon by the Board. Any such
committee designated by the Board will have such name as may be determined from
time to time by resolution adopted by the Board.
(c) The members of each committee of the Board will serve in such capacity
at the pleasure of the Board or as may be specified in any resolution from time
to time adopted by the Board. The Board may designate one or more Directors as
alternate members of any such committee, who may replace any absent or
disqualified member at any meeting of such committee. In lieu of such
designation by the Board, in the absence or disqualification of any member of a
committee of the Board, the members thereof present at any such meeting of such
committee and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member.
(d) Except as otherwise provided in these Bylaws or by law, any committee
of the Board, to the extent provided in Bylaw 19(a) or, if applicable, in the
resolution of the Board, will have and may exercise all the powers and authority
of the Board in the direction of the management of the business and affairs of
the Company. Any such committee designated by the Board will have such name as
may be determined from time to time by resolution adopted by the Board.
Unless otherwise prescribed by the Board, a majority of the members of any
committee of the Board will constitute a quorum for the transaction of business,
and the act of a majority of the members present at a meeting at which there is
a quorum will be the act of such committee. Each committee of the Board may
prescribe its own rules for calling and holding meetings and its method of
procedure, subject to any rules prescribed by the Board, and will keep a written
record of all actions taken by it.
20. Compensation. The Board may establish the compensation for, and
reimbursement of the expenses of, Directors for membership on the Board and on
committees of the Board, attendance at meetings of the Board or committees of
the Board, and for other services by Directors to the Company or any of its
majority-owned subsidiaries.
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21. Rules. The Board may adopt rules and regulations for the conduct of
meetings and the oversight of the management of the affairs of the Company.
NOTICES
22. Generally. Except as otherwise provided by law, these Bylaws, or the
Certificate of Incorporation, whenever by law or under the provisions of the
Certificate of Incorporation or these Bylaws notice is required to be given to
any Director or stockholder, it will not be construed to require personal
notice, but such notice may be given in writing, by mail or courier service,
addressed to such Director or stockholder, at the address of such Director or
stockholder as it appears on the records of the Company, with postage thereon
prepaid, and such notice will be deemed to be given at the time when the same is
deposited in the United States mail. Notice to Directors may also be given by
telephone, telegram, telex, facsimile, electronic transmission or similar medium
of communication or as otherwise may be permitted by these Bylaws.
23. Waivers. Whenever any notice is required to be given by law or under
the provisions of the Certificate of Incorporation or these Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to such notice, or
a waiver by electronic transmission by the person entitled to such notice,
whether before or after the time of the event for which notice is to be given,
will be deemed equivalent to such notice. Attendance of a person at a meeting
will 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.
OFFICERS
24. Generally. The officers of the Company will be elected by the Board and
will consist of a Chairman (who, unless the Board specifies otherwise, will also
be the Chief Executive Officer), a President, a Secretary, and a Treasurer. The
Board of Directors may also choose any or all of the following: one or more Vice
Chairmen, one or more Assistants to the Chairman, one or more Vice Presidents
(who may be given particular designations with respect to authority, function,
or seniority), one or more Assistant Secretaries, one or more Assistant
Treasurers and such other officers as the Board may from time to time determine.
Notwithstanding the foregoing, by specific action the Board may authorize the
Chairman to appoint any person to any office other than Chairman, Chief
Executive Officer, President, Secretary, or Treasurer. Any number of offices may
be held by the same person. Any of the offices may be left vacant from time to
time as the Board may determine. In the case of the absence or disability of any
officer of the Company or for any other reason deemed sufficient by a majority
of the Board, the Board may delegate the absent or disabled officer's powers or
duties to any other officer or to any Director.
25. Compensation. The compensation of all officers and agents of the
Company who are also Directors of the Company will be fixed by the Board or by a
committee of the Board. The Board may fix, or delegate the power to fix, the
compensation of other officers and agents of the Company to an officer of the
Company.
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26. Succession. The officers of the Company will hold office until their
successors are elected and qualified. Any officer may be removed at any time by
the affirmative vote of a majority of the Whole Board. Any vacancy occurring in
any office of the Company may be filled by the Board or by the Chairman as
provided in Bylaw 24.
27. Authority and Duties. Each of the officers of the Company will have
such authority and will perform such duties as are customarily incident to their
respective offices or as may be specified from time to time by the Board.
STOCK
28. Certificates. Certificates representing shares of stock of the Company
will be in such form as is determined by the Board, subject to applicable legal
requirements. Each such certificate will be numbered and its issuance recorded
in the books of the Company, and such certificate will exhibit the holder's name
and the number of shares and will be signed by, or in the name of, the Company
by the Chairman or the President and the Secretary or an Assistant Secretary, or
the Treasurer or an Assistant Treasurer, and will also be signed by, or bear the
facsimile signature of, a duly authorized officer or agent of any properly
designated transfer agent of the Company. Any or all of the signatures and the
seal of the Company, if any, upon such certificates may be facsimiles, engraved,
or printed. Such certificates may be issued and delivered notwithstanding that
the person whose facsimile signature appears thereon may have ceased to be such
officer at the time the certificates are issued and delivered.
29. Classes of Stock. The designations, powers, preferences and relative,
participating, optional or other special rights of the various classes of stock
or series thereof, and the qualifications, limitations or restrictions thereof,
will be set forth in full or summarized on the face or back of the certificates
which the Company issues to represent its stock or, in lieu thereof, such
certificates will set forth the office of the Company from which the holders of
certificates may obtain a copy of such information at no charge.
30. Lost, Stolen or Destroyed Certificates. The Secretary may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Company alleged to have been lost, stolen
or destroyed, upon the making of an affidavit of that fact, satisfactory to the
Secretary, by the person claiming the certificate of stock to be lost, stolen or
destroyed. As a condition precedent to the issuance of a new certificate or
certificates, the Secretary may require the owners of such lost, stolen or
destroyed certificate or certificates to give the Company a bond in such sum and
with such surety or sureties as the Secretary may direct as indemnity against
any claims that may be made against the Company with respect to the certificate
alleged to have been lost, stolen or destroyed or the issuance of the new
certificate.
31. Record Dates. (a) In order that the Company may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board may fix a record date, which will not be more
than 60 nor less than 10 calendar days before the date of such meeting. If no
record date is fixed by the Board, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders will be at the
close of business on the calendar day next preceding the day on which notice is
given, or, if
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notice is waived, at the close of business on the calendar day next preceding
the day on which the meeting is held. A determination of stockholders of record
entitled to notice of or to vote at a meeting of the stockholders will apply to
any adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
(b) In order that the Company 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 may fix a record date, which record date will not be more than 60
calendar days prior to such action. If no record date is fixed, the record date
for determining stockholders for any such purpose will be at the close of
business on the calendar day on which the Board adopts the resolution relating
thereto.
(c) The Company will be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes, and will
not be bound to recognize any equitable or other claim to, or interest in, such
share on the part of any other person, whether or not the Company has notice
thereof, except as expressly provided by applicable law.
GENERAL
32. Fiscal Year. The fiscal year of the Company will end on December 31st
of each year or such other date as may be fixed from time to time by the Board.
33. Seal. The Board may adopt a corporate seal and use the same by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
34. Reliance Upon Books, Reports, and Records. Each Director, each member
of a committee designated by the Board, and each officer of the Company will, in
the performance of his or her duties, be fully protected in relying in good
faith upon the records of the Company and upon such information, opinions,
reports, or statements presented to the Company by any of the Company's officers
or employees, or committees of the Board, or by any other person or entity as to
matters the Director, committee member, or officer believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company.
35. Time Periods. In applying any provision of these Bylaws that requires
that an act be performed or not be performed a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days will be used unless otherwise specified, the
day of the doing of the act will be excluded, and the day of the event will be
included.
36. Amendments. Except as otherwise provided by law or by the Certificate
of Incorporation or these Bylaws, these Bylaws or any of them may be amended in
any respect or repealed at any time, either (i) at any meeting of stockholders,
provided that any amendment or supplement proposed to be acted upon at any such
meeting has been described or referred to in the notice of such meeting, or (ii)
at any meeting of the Board, provided that no amendment
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adopted by the Board may vary or conflict with any amendment adopted by the
stockholders in accordance with the Certificate of Incorporation and these
Bylaws. Notwithstanding the foregoing and anything contained in these Bylaws to
the contrary, Bylaws 1, 3, 8, 10, 11, 12, 13, and 36 may not be amended or
repealed by the stockholders, and no provision inconsistent therewith may be
adopted by the stockholders, without the affirmative vote of the holders of at
least 80% of the Voting Stock, voting together as a single class.
37. Certain Defined Terms. Terms used herein with initial capital letters
that are not otherwise defined are used herein as defined in the Certificate of
Incorporation. In addition, for purposes of Bylaws 8 and 13, "public disclosure"
means disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document filed by
the Company with the Securities and Exchange Commission pursuant to the Exchange
Act or furnished to stockholders.
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