EXHIBIT 3.4
AMENDED AND RESTATED BYLAWS
OF
IMMERSION CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I STOCKHOLDERS.....................................................1
SECTION 1.1 ANNUAL MEETING............................................1
SECTION 1.2 SPECIAL MEETINGS..........................................1
SECTION 1.3 NOTICE OF MEETINGS........................................1
SECTION 1.4 QUORUM....................................................2
SECTION 1.5 CONDUCT OF THE STOCKHOLDERS' MEETING......................3
SECTION 1.6 CONDUCT OF BUSINESS.......................................3
SECTION 1.7 NOTICE OF STOCKHOLDER BUSINESS............................3
SECTION 1.8 PROXIES AND VOTING........................................4
SECTION 1.9 STOCK LIST................................................4
SECTION 1.10 MEETINGS BY REMOTE COMMUNICATION..........................5
ARTICLE II BOARD OF DIRECTORS...............................................5
SECTION 2.1 GENERAL POWERS............................................5
SECTION 2.2 NUMBER AND TERM OF OFFICE.................................5
SECTION 2.3 VACANCIES AND NEWLY CREATED DIRECTORSHIPS.................5
SECTION 2.4 RESIGNATION...............................................6
SECTION 2.5 REGULAR MEETINGS..........................................6
SECTION 2.6 SPECIAL MEETINGS..........................................6
SECTION 2.7 NOTICE OF SPECIAL MEETINGS................................6
SECTION 2.8 QUORUM6
SECTION 2.9 PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.........6
SECTION 2.10 ACTION AT MEETING.........................................7
SECTION 2.11 ACTION BY WRITTEN CONSENT.................................7
SECTION 2.12 POWERS....................................................7
SECTION 2.13 COMPENSATION OF DIRECTORS.................................7
SECTION 2.14 NOMINATION OF DIRECTOR CANDIDATES.........................8
ARTICLE III COMMITTEES.......................................................9
SECTION 3.1 COMMITTEES OF THE BOARD OF DIRECTORS......................9
SECTION 3.2 CONDUCT OF BUSINESS......................................10
ARTICLE IV OFFICERS........................................................10
SECTION 4.1 GENERALLY................................................10
SECTION 4.2 CHAIRMAN OF THE BOARD....................................10
SECTION 4.3 PRESIDENT................................................10
SECTION 4.4 VICE PRESIDENT...........................................11
SECTION 4.5 TREASURER................................................11
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SECTION 4.6 SECRETARY................................................11
SECTION 4.7 DELEGATION OF AUTHORITY..................................11
SECTION 4.8 REMOVAL..................................................11
SECTION 4.9 ACTION WITH RESPECT TO SECURITIES OF OTHER
CORPORATIONS.............................................11
ARTICLE V STOCK...........................................................11
SECTION 5.1 CERTIFICATES OF STOCK....................................11
SECTION 5.2 TRANSFERS................................................12
SECTION 5.3 RECORD DATE..............................................12
SECTION 5.4 LOST, STOLEN OR DESTROYED CERTIFICATES...................12
SECTION 5.5 REGULATIONS..............................................12
ARTICLE VI NOTICES.........................................................13
SECTION 6.1 NOTICES..................................................13
SECTION 6.2 WAIVER OF NOTICE.........................................13
ARTICLE VII MISCELLANEOUS...................................................13
SECTION 7.1 FACSIMILE SIGNATURES.....................................13
SECTION 7.2 CORPORATE SEAL...........................................13
SECTION 7.3 RELIANCE UPON BOOKS, REPORTS AND RECORDS.................14
SECTION 7.4 FISCAL YEAR..............................................14
SECTION 7.5 TIME PERIODS.............................................14
SECTION 7.6 CERTIFICATE OF INCORPORATION.............................14
SECTION 7.7 SEVERABILITY.............................................14
ARTICLE VIII INDEMNIFICATION OF DIRECTORS AND OFFICERS.......................14
SECTION 8.1 RIGHT TO INDEMNIFICATION.................................14
SECTION 8.2 RIGHT OF CLAIMANT TO BRING SUIT..........................15
SECTION 8.3 NON-EXCLUSIVITY OF RIGHTS................................15
SECTION 8.4 INDEMNIFICATION CONTRACTS................................16
SECTION 8.5 INSURANCE................................................16
SECTION 8.6 EFFECT OF AMENDMENT......................................16
ARTICLE IX AMENDMENTS......................................................16
SECTION 9.1 AMENDMENT OF BYLAWS......................................16
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IMMERSION CORPORATION
A DELAWARE CORPORATION
BYLAWS
ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meeting. An annual meeting of the stockholders, for the
election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall each year fix, which date shall be within thirteen months
subsequent to the later of the date of incorporation or the last annual meeting
of stockholders.
Section 1.2 Special Meetings. Special meetings of stockholders, for any purpose
or purposes prescribed in the notice of the meeting, may be called only (i) by
the Board of Directors pursuant to a resolution adopted by a majority of the
total number of authorized directors (whether or not there exists any vacancies
in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or (ii) by the holders of not
less than 10% of all shares entitled to cast votes at the meeting, voting
together as single class and shall be held at such place, on such date and at
such time as they shall fix. Business transacted at special meetings shall be
confined to the purpose or purposes stated in the notice of meeting.
Upon request in writing sent by registered mail to the President or
Chief Executive Officer by any stockholder or stockholders entitled to request a
special meeting of stockholders pursuant to this Section 1.2, and containing the
information required pursuant to Sections 1.7 and 2.14, as applicable, the Board
of Directors shall determine a place and time for such meeting, which time shall
be not less than 120 nor more than 130 days after the receipt of such request,
and a record date for the determination of stockholders entitled to vote at such
meeting shall be fixed by the Board of Directors, in advance, which shall not be
more that 60 days nor less than 10 days before the date of such meeting.
Following such receipt of a request and determination by the Secretary of the
validity thereof, it shall be the duty of the Secretary to present the request
to the Board of Directors, and upon Board action as provided in this Section
1.2, to cause notice to be given to the stockholders entitled to vote at such
meeting, in the manner set forth in Section 1.3, hereof, that a meeting will be
held at the place and time so determined, for the purposes set forth in the
stockholder's request, as well as any purpose or purposes determined by the
Board of Directors in accordance with this Section 1.2.
Section 1.3 Notice of Meetings.
(a) Written notice of the place, date, and time of all meetings of the
stockholders shall be given, not less than ten (10) nor more than sixty (60)
days before the date on which the meeting is to be held, to each stockholder
entitled to vote at such meeting, except as otherwise provided herein or
required by law (meaning, here and hereinafter, as required from time to time by
the Delaware General Corporation Law or the Certificate of Incorporation of the
Corporation).
(b) When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than thirty
(30) days after the date for which the meeting was originally noticed, or if a
new record date is fixed for the adjourned meeting, written notice of the place,
date, and time of the adjourned meeting shall be given in conformity herewith.
At any adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
(c) Notice to stockholders may be given by personal delivery, mail, or,
with the consent of the stockholder entitled to receive notice, by facsimile or
other means of electronic transmission. If mailed, such notice shall be
delivered by postage prepaid envelope directed to each stockholder at such
stockholder's address as it appears in the records of the corporation and shall
be deemed given when deposited in the United States mail. Notice given by
electronic transmission pursuant to this subsection shall be deemed given: (1)
if by facsimile telecommunication, when directed to a facsimile
telecommunication number at which the stockholder has consented to receive
notice; (2) if by electronic mail, when directed to an electronic mail address
at which the stockholder has consented to receive notice; (3) if by posting on
an electronic network together with separate notice to the stockholder of such
specific posting, upon the later of (A) such posting and (B) the giving of such
separate notice; and (4) if by any other form of electronic transmission, when
directed to the stockholder. An affidavit of the secretary or an assistant
secretary or of the transfer agent or other agent of the corporation that the
notice has been given by personal delivery, by mail, or by a form of electronic
transmission shall, in the absence of fraud, be prima facie evidence of the
facts stated therein.
(d) Notice of any meeting of stockholders need not be given to any
stockholder if waived by such stockholder either in a writing signed by such
stockholder or by electronic transmission, whether such waiver is given before
or after such meeting is held. If such a waiver is given by electronic
transmission, the electronic transmission must either set forth or be submitted
with information from which it can be determined that the electronic
transmission was authorized by the stockholder.
Section 1.4 Quorum. At any meeting of the stockholders, the holders of a
majority of all of the shares of the stock entitled to vote at the meeting,
present in person or by proxy, shall constitute a quorum for all purposes,
unless or except to the extent that the presence of a larger number may be
required by law.
If a quorum shall fail to attend any meeting, the chairman of the meeting
or the holders of a majority of the shares of stock entitled to vote who are
present, in person or by proxy, may adjourn the meeting to another place, date,
or time.
If a notice of any adjourned special meeting of stockholders is sent to all
stockholders entitled to vote thereat, stating that it will be held with those
present constituting a quorum, then except as otherwise required by law, those
present at such adjourned meeting shall constitute a quorum, and all matters
shall be determined by a majority of the votes cast at such meeting.
Section 1.5 Conduct of the Stockholders' Meeting. At every meeting of the
stockholders, the Chairman, if there is such an officer, or if not, the
President of the Corporation, or in his absence the Vice President designated by
the President, or in the absence of such designation any Vice President, or in
the absence of the President or any Vice President, a chairman chosen by the
majority of the voting shares represented in person or by proxy, shall act as
Chairman. The Secretary of the Corporation or a person designated by the
Chairman shall act as Secretary of the meeting. Unless otherwise approved by the
Chairman, attendance at the stockholders' meeting is restricted to stockholders
of record, persons authorized in accordance with Section 1.8 of these Bylaws to
act by proxy, and officers of the Corporation.
Section 1.6 Conduct of Business. The Chairman shall call the meeting to
order, establish the agenda, and conduct the business of the meeting in
accordance therewith or, at the Chairman's discretion, it may be conducted
otherwise in accordance with the wishes of the stockholders in attendance. The
date and time of the opening and closing of the polls for each matter upon which
the stockholders will vote at the meeting shall be announced at the meeting.
The Chairman shall also conduct the meeting in an orderly manner, rule on
the precedence of and procedure on, motions and other procedural matters, and
exercise discretion with respect to such procedural matters with fairness and
good faith toward all those entitled to take part. Without limiting the
foregoing, the chairman may (a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the presiding officer or Board of Directors, (b) restrict use of
audio or video recording devices at the meeting, and (c) impose reasonable
limits on the amount of time taken up at the meeting on discussion in general or
on remarks by any one stockholder. Should any person in attendance become unruly
or obstruct the meeting proceedings, the Chairman shall have the power to have
such person removed from participation. Notwithstanding anything in the Bylaws
to the contrary, no business shall be conducted at a meeting except in
accordance with the procedures set forth in this Section 1.6 and Section 1.7,
below. The Chairman of a meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
and in accordance with the provisions of this Section 1.6 and Section 1.7, and
if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Section 1.7 Notice of Stockholder Business. At an annual or special
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) properly brought before the meeting by or at the direction
of the Board of Directors, or (iii) properly brought before an annual meeting
by a stockholder. For business to be properly brought before an annual meeting
by a stockholder, it must be a proper matter for stockholder action under the
Delaware General Corporation Law, and the stockholder must have
given timely notice thereof in writing to the Secretary of the corporation. To
be timely, a stockholder proposal to be presented at an annual meeting shall
be received at the corporation's principal executive offices not less than 120
calendar days in advance of the first anniversary of the date that the
corporation's (or the corporation's predecessor's) proxy statement was released
to stockholders in connection with the previous year's annual meeting of
stockholders, except that if no annual meeting was held in the previous year or
the date of the annual meeting is more than 30 calendar days earlier than the
date contemplated at the time of the previous year's proxy statement, notice by
the stockholders to be timely must be received not later than the close of
business on the 10th day following the day on which the date of the annual
meeting is publicly announced. "Public announcement" for purposes hereof shall
have the meaning set forth in Section 2.14(c) of these Bylaws. In no event shall
the public announcement at an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described above.
A stockholder's notice to the Secretary of the corporation shall set
forth as to each matter the stockholder proposes to bring before the annual or
special meeting (i) a brief description of the business desired to be brought
before the annual meeting, (ii) the name and address of the stockholder
proposing such business and of the beneficial owner, if any, on whose behalf the
business is being brought, (iii) the class and number of shares of the
corporation which are beneficially owned by the stockholder and such other
beneficial owner, and (iv) any material interest of the stockholder and such
other beneficial owner in such business.
Section 1.8 Proxies and Voting. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing or by a transmission permitted by law filed in accordance
with the procedure established for the meeting. No stockholder may authorize
more than one proxy for his shares.
Each stockholder shall have one vote for every share of stock entitled to
vote which is registered in his or her name on the record date for the meeting,
except as otherwise provided herein or required by law.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law, all other matters shall be determined by a
majority of the votes cast.
Section 1.9 Stock List. A complete list of stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the number of shares
registered in his or her name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place
where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any such stockholder
who is present. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
Section 1.10 Meetings by Remote Communication. If authorized by the Board
of Directors, and subject to such guidelines and procedures as the Board may
adopt, stockholders and proxy holders not physically present at a meeting of
stockholders may, by means of remote communication, participate in the meeting
and be deemed present in person and vote at the meeting, whether such meeting is
to be held at a designated place or solely by means of remote communication,
provided that (i) the corporation shall implement reasonable measures to verify
that each person deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxy holder, (ii) the corporation
shall implement reasonable measures to provide such stockholders and proxy
holders a reasonable opportunity to participate in the meeting and to vote on
matters submitted to the stockholders, including an opportunity to read or hear
the proceedings of the meeting substantially concurrently with such proceedings,
and (iii) if any stockholder or proxy holder votes or takes other action at the
meeting by means of remote communication, a record of such vote or other action
shall be maintained by the corporation.
ARTICLE II
BOARD OF DIRECTORS
Section 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 or the Certificate of Incorporation. In the event of a vacancy in the Board
of Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
Section 2.2 Number and Term of Office. The number of directors shall
initially be seven (7) and, thereafter, shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption). The directors shall be
divided into three classes, with the term of office of the first class to expire
at the first annual meeting of stockholders following the initial public
offering of the Corporation's Common Stock (the "IPO"); the term of office of
the second class to expire at the second annual meeting of stockholders held
after the IPO, the term of office of the third class to expire at the third
annual meeting of stockholders held after the IPO and thereafter for each such
term to expire at each third succeeding annual meeting of stockholders after
such election. All directors shall hold office until the expiration of the term
for which elected and until their respective successors are elected, except in
the case of the death, resignation or removal of any director.
Section 2.3 Vacancies and Newly Created Directorships. Subject to the
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification or other cause may be filled only by a
majority vote of the directors then in office, though less than a quorum, and
directors so chosen shall hold office for a term expiring at the next annual
meeting of stockholders. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
Section 2.4 Resignation. Any director may resign by delivering notice in
writing or by electronic transmission to the President, Chairman of the Board or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
Section 2.5 Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place or places, on such date or dates, and at such time
or times as shall have been established by the Board of Directors and publicized
among all directors. A notice of each regular meeting shall not be required.
Section 2.6 Special Meetings. Special meetings of the Board of Directors
may be called by one-third of the directors then in office (rounded up to the
nearest whole number) or by the chief executive officer and shall be held at
such place, on such date, and at such time as they or he or she shall fix.
Section 2.7 Notice of Special Meetings. Notice of any special meeting of
directors shall be given to each director by whom it is not waived by the
Secretary or by the officer or one of the directors calling the meeting. Notice
shall be duly given to each director by (i) giving notice to such director in
person or by telephone, electronic transmission or voice message system at least
24 hours in advance of the meeting, (ii) sending a facsimile to his last known
facsimile number, or delivering written notice by hand to his last known
business or home address, at least 24 hours in advance of the meeting, or (iii)
mailing written notice to his last known business or home address at least five
(5) days 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. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
Section 2.8 Quorum. At any meeting of the Board of Directors, a majority
of the total number of authorized directors shall constitute a quorum for all
purposes. If a quorum shall fail to attend any meeting, a majority of those
present may adjourn the meeting to another place, date, or time, without further
notice or waiver thereof. Interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or at a meeting of a
committee which authorizes a particular contract or transaction.
Section 2.9 Participation in Meetings by Conference Telephone. Members of
the Board of Directors, or of any committee thereof, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and such participation shall constitute presence in
person at such meeting.
Section 2.10 Action at Meeting. At any meeting of the Board of Directors
at which a quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by law, the
Certificate of Incorporation or these Bylaws.
Section 2.11 Action by Written Consent. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if all members of the Board, consent to the action in writing or by
electronic transmission, and the writings or electronic transmissions are filed
with the minutes of proceedings of the Board. Such filing shall be in paper
form if the minutes are maintained in paper form and shall be in electronic
form if the minutes are maintained in electronic form.
Section 2.12 Powers. The Board of Directors may, except as otherwise
required by law, exercise all such powers and do all such acts and things as may
be exercised or done by the Corporation, including, without limiting the
generality of the foregoing, the unqualified power:
(a) Declare dividends from time to time in accordance with law;
(b) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(c) To authorize the creation, making and issuance, in such form as it
may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(d) To remove any officer of the Corporation with or without cause,
and from time to time to devolve the powers and duties of any officer upon any
other person for the time being;
(e) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(f) To adopt from time to time such stock, option, stock purchase,
bonus or other compensation plans for directors, officers, employees and agents
of the Corporation and its subsidiaries as it may determine;
(g) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the Corporation
and its subsidiaries as it may determine; and
(h) To adopt from time to time regulations, not inconsistent with
these bylaws, for the management of the Corporation's business and affairs.
Section 2.13 Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the Board of Directors.
Section 2.14 Nomination of Director Candidates.
(a) Subject to the rights of holders of any class or series of
Preferred Stock then outstanding, nominations for the election of Directors at
an annual meeting may be made by (i) the Board of Directors or a duly authorized
committee thereof or (ii) any stockholder entitled to vote in the election of
Directors generally who complies with the procedures set forth in this Bylaw
and who is a stockholder of record at the time notice is delivered to the
Secretary of the corporation. Any stockholder entitled to vote in the election
of Directors generally may nominate one or more persons for election as
Directors at an annual meeting only if timely notice of such stockholder's
intent to make such nomination or nominations has been given in writing to
the Secretary of the corporation. To be timely, a stockholder nomination for a
director to be elected at an annual meeting shall be received at the
corporation's principal executive offices not less than 120 calendar days in
advance of the first anniversary of the date that the corporation's (or the
corporation's predecessor's) proxy statement was released to stockholders in
connection with the previous year's annual meeting of stockholders, except that
if no annual meeting was held in the previous year or the date of the annual
meeting has been advanced by more than 30 calendar days from the date
contemplated at the time of the previous year's proxy statement, notice by
the stockholders to be timely must be received not later than the close of
business on the tenth day following the day on which public announcement of
the date of such meeting is first made. Each such notice shall set forth: (i)
the name and address of the stockholder who intends to make the nomination, of
the beneficial owner, if any, on whose behalf the nomination is being made and
of the person or persons to be nominated; (ii) a representation that
the stockholder is a holder of record of stock of the corporation
entitled to vote for the election of Directors on the date of such notice and
intends to appear in person or by proxy at the meeting to nominate the person
or persons specified in the notice; (iii) a description of all
arrangements or understandings between the stockholder or such beneficial owner
and each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (iv) such other information regarding each nominee proposed by such
stockholder 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 of Directors;
and (v) the consent of each nominee to serve as a director of the corporation if
so elected. In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above.
Notwithstanding the third sentence of this Section 2.14(a), in the event that
the number of Directors to be elected at an annual meeting is increased and
there is no public announcement by the corporation naming the nominees for the
additional directorships at least 130 days prior to the first anniversary of the
date that the corporation's (or its predecessor's) proxy statement was released
to stockholders in connection with the previous year's annual meeting, a
stockholder's notice required by this Section 2.14(a) shall also be considered
timely, but only with respect to nominees for the additional directorships, if
it shall be delivered to the Secretary at the principal executive offices of the
corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the corporation.
(b) Nominations of persons for election to the Board of Directors may
be made at a special meeting of stockholders at which directors are to be
elected pursuant to the corporation's notice of meeting by (i) or at the
direction of the Board of Directors or a committee thereof or (ii) any
stockholder of the corporation who is entitled to vote at the meeting, who
complies with the notice procedures set forth in this Bylaw and who is a
stockholder of record at the time such notice is delivered to the Secretary of
the corporation. In the event the corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case
may be), for election to such position(s) as are specified in the corporation's
notice of meeting, if the stockholder's notice as required by paragraph (a) of
this Bylaw shall be delivered to the Secretary at the principal executive
offices of the corporation not earlier than the 90th day prior to such special
meeting and not later than the close of business on the later of the 70th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In
no event shall the public announcement of an adjournment or postponement of a
special meeting commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above.
(c) For purposes of these Bylaws, "public announcement" shall mean
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 Securities Exchange Act of 1934 (the "Exchange Act").
(d) Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Bylaw. Nothing in this Bylaw shall be deemed to
affect any rights of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange
Act.
(e) Only persons nominated in accordance with the procedures set
forth in this Section 2.14 shall be eligible to serve as directors. Except as
otherwise provided by law, the Chairman of the meeting shall have the power
and duty (a) to determine whether a nomination was made in accordance with the
procedures set forth in this Section 2.14 and (b) if any proposed nomination
was not made in compliance with this Section 2.14, to declare that such
nomination shall be disregarded.
(f) If the Chairman of the meeting for the election of Directors
determines that a nomination of any candidate for election as a Director at
such meeting was not made in accordance with the applicable provisions of this
Section 2.14, such nomination shall be void; provided, however, that nothing in
this Section 2.14 shall be deemed to limit any voting rights upon the occurrence
of dividend arrearages provided to holders of Preferred Stock pursuant to
the Preferred Stock designation for any series of Preferred Stock.
ARTICLE III
COMMITTEES
Section 3.1 Committees of the Board of Directors. The Board of Directors,
by a vote of a majority of the whole Board, may from time to time designate
committees of the Board, with such lawfully delegable powers and duties as it
thereby confers, to serve at the pleasure of the Board and shall, for those
committees and any others provided for herein, elect a director or directors to
serve as the member or members, designating, if it desires, other directors as
alternate members who may replace any absent or disqualified member at any
meeting of the committee. Any committee so designated may exercise the power and
authority of the Board of Directors to declare a dividend, to authorize the
issuance of stock or to adopt a certificate of ownership and merger pursuant to
Section 253 of the Delaware General Corporation Law if the resolution which
designates the committee or a supplemental resolution of the Board of Directors
shall so provide. In the absence or disqualification of any member of any
committee and any alternate member in his place, the member or members of the
committee present at the meeting and not disqualified from voting, whether or
not he or she or they constitute a quorum, may by unanimous vote appoint another
member of the Board of Directors to act at the meeting in the place of the
absent or disqualified member.
Section 3.2 Conduct of Business. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings;
one-third of the authorized members shall constitute a quorum unless the
committee shall consist of one or two members, in which event one member shall
constitute a quorum; and all matters shall be determined by a majority vote of
the members present. Action may be taken by any committee without a meeting if
all members thereof consent to the action in writing or by electronic
transmission, and the writings or electronic transmissions are filed with the
minutes of proceedings of the committee. Such filing shall be in paper form if
the minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
ARTICLE IV
OFFICERS
Section 4.1 Generally. The officers of the Corporation shall consist of a
President, one or more Vice Presidents, a Secretary and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, a
Chairman of the Board and such other officers as may from time to time be
appointed by the Board of Directors. Officers shall be elected by the Board of
Directors. Each officer shall hold office until his or her successor is elected
and qualified or until his or her earlier resignation or removal. The Chairman
of the Board, if there shall be such an officer, and the President shall each be
members of the Board of Directors. Any number of offices may be held by the same
person.
Section 4.2 Chairman of the Board. The Chairman of the Board, if there
shall be such an officer, shall, if present, preside at all meetings of the
Board of Directors, and exercise and perform such other powers and duties as may
be from time to time assigned to him by the Board of Directors or prescribed by
these bylaws.
Section 4.3 President. The President shall be the chief executive officer
of the Corporation. Subject to the provisions of these bylaws and to the
direction of the Board of Directors, he or she shall have the responsibility for
the general management and control of the business and affairs of the
Corporation and shall perform all duties and have all powers which are commonly
incident to the office of chief executive or which are delegated to him or her
by the Board of Directors. He or she shall have power to sign all stock
certificates, contracts and other instruments of the Corporation which are
authorized and shall have general supervision and direction of all of the other
officers, employees and agents of the Corporation.
Section 4.4 Vice President. Each Vice President shall have such powers and
duties as may be delegated to him or her by the Board of Directors. One Vice
President shall be designated by the Board to perform the duties and exercise
the powers of the President in the event of the President's absence or
disability.
Section 4.5 Treasurer. Unless otherwise designated by the Board of
Directors, the Chief Financial Officer of the Corporation shall be the
Treasurer. The Treasurer shall have the responsibility for maintaining the
financial records of the Corporation and shall have custody of all monies and
securities of the Corporation. He or she shall make such disbursements of the
funds of the Corporation as are authorized and shall render from time to time an
account of all such transactions and of the financial condition of the
Corporation. The Treasurer shall also perform such other duties as the Board of
Directors may from time to time prescribe.
Section 4.6 Secretary. The Secretary shall issue all authorized notices
for, and shall keep, or cause to be kept, minutes of all meetings of the
stockholders, the Board of Directors, and all committees of the Board of
Directors. He or she shall have charge of the corporate books and shall perform
such other duties as the Board of Directors may from time to time prescribe.
Section 4.7 Delegation of Authority. The Board of Directors may from time
to time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
Section 4.8 Removal. Any officer of the Corporation may be removed at any
time, with or without cause, by the Board of Directors.
Section 4.9 Action With Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the President or any
officer of the Corporation authorized by the President shall have power
to vote and otherwise act on behalf of the Corporation, in person or by
proxy, at any meeting of stockholders of or with respect to any action of
stockholders of any other corporation in which this Corporation may hold
securities and otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of its ownership of securities in such other
corporation.
ARTICLE V
STOCK
Section 5.1 Certificates of Stock. The shares of the Corporation shall be
represented by certificates, provided that the Board of Directors may provide by
resolution or resolutions that some or all of any class or series of its stock
shall be uncertificated shares; provided, however, that no such resolution shall
apply to shares represented by a certificate until such certificate is
surrendered to the Corporation. Every holder of stock of the corporation
represented by certificates, and, upon written request to the Corporation's
transfer agent or registrar, any holder of uncertificated shares, 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 him
in the Corporation. Each such certificate shall be signed by, or in the name of
the corporation by, the President or a Vice President, and by the Secretary or
an Assistant Secretary, or the Treasurer or an Assistant Treasurer of the
Corporation. Any or all of the signatures on the certificate may be a facsimile.
Section 5.2 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: (i) in the
case of shares represented by a certificate, 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 authenticity of signature as the
corporation or its transfer agent may reasonably require; and (ii) in the case
of uncertificated shares, upon the receipt of proper transfer instructions from
the registered owner thereof. Except as may be otherwise required by law, the
Certificate of Incorporation or the Bylaws, 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
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 Bylaws.
Section 5.3 Record Date. The Board of Directors may fix a record date,
which shall not be more than sixty (60) nor fewer than ten (10) days before the
date of any meeting of stockholders, nor more than sixty (60) days prior to the
time for the other action hereinafter described, as of which there shall be
determined the stockholders who are entitled: to notice of or to vote at any
meeting of stockholders or any adjournment thereof; to receive payment of any
dividend or other distribution or allotment of any rights; or to exercise any
rights with respect to any change, conversion or exchange of stock or with
respect to any other lawful action.
Section 5.4 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, or it may issue uncertificated
shares if the shares represented by such certificate have been designated as
uncertificated shares in accordance with Section 5.1, 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.
Section 5.5 Regulations. The issue, transfer, conversion and registration
of certificates of stock shall be governed by such other regulations as the
Board of Directors may establish.
ARTICLE VI
NOTICES
Section 6.1 Notices. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder, director,
officer, employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the mails, postage paid, or by sending such notice by commercial
courier service, or by facsimile or other electronic transmission, provided that
notice to stockholders by electronic transmission shall be given in the manner
provided in Section 232 of the Delaware General Corporation Law. Any such notice
shall be addressed to such stockholder, director, officer, employee or agent at
his or her last known address as the same appears on the books of the
corporation. The time when such notice shall be deemed to be given shall be the
time such notice is received by such stockholder, director, officer, employee or
agent, or by any person accepting such notice on behalf of such person, if
delivered by hand, facsimile, other electronic transmission or commercial
courier service, or the time such notice is dispatched, if delivered through the
mails. Without limiting the manner by which notice otherwise may be given
effectively, notice to any stockholder shall be deemed given: (1) if by
facsimile, when directed to a number at which the stockholder has consented to
receive notice; (2) if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive notice; (2) if by a
posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (A) such posting and (B)
the giving of such separate notice; (4) if by any other form of electronic
transmission, when directed to the stockholder; and (5) if by mail, when
deposited in the mail, postage prepaid, directed to the stockholder at such
stockholder's address as it appears on the records of the corporation.
Section 6.2 Waiver of Notice. Whenever any notice whatsoever is
required to be given by law, by the Certificate of Incorporation or by these
Bylaws, a waiver of such notice either in writing signed by the person entitled
to such notice or such person's duly authorized attorney, or by electronic
transmission or any other method permitted under the Delaware General
Corporation Law, whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice. Neither the business nor the purpose
of any meeting need be specified in such a waiver. Attendance at any meeting
shall constitute waiver of notice except attendance for the sole purpose of
objecting to the timeliness of notice.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Facsimile Signatures. In addition to the provisions for use of
facsimile signatures elsewhere specifically authorized in these bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
Section 7.2 Corporate Seal. The Board of Directors may provide a suitable seal,
containing the name of the Corporation, which seal shall be in the charge of the
Secretary. If and when so directed by the Board of Directors or a committee
thereof, duplicates of the seal may be kept and used by the Treasurer or by an
Assistant Secretary or Assistant Treasurer.
Section 7.3 Reliance Upon Books, Reports and Records. Each director, each
member of any committee designated by the Board of Directors, and each officer
of the Corporation shall, in the performance of his duties, be fully protected
in relying in good faith upon the books of account or other records of the
Corporation, including reports made to the Corporation by any of its officers,
by an independent certified public accountant, or by an appraiser selected with
reasonable care.
Section 7.4 Fiscal Year. The fiscal year of the Corporation shall be as
fixed by the Board of Directors.
Section 7.5 Time Periods. In applying any provision of these bylaws which
require that an act be done or not done 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 shall be used, the day of the doing of the act shall
be excluded, and the day of the event shall be included.
Section 7.6 Certificate of Incorporation. All references in these Bylaws
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.
Section 7.7 Severability. Any determination that any provision of these
Bylaws is for any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these Bylaws.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.1 Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative, is or was a director, officer or employee of
the Corporation or is or was serving at the request of the Corporation as a
director, officer or employee of another corporation, or of a Partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or employee or in any other capacity
while serving as a director, officer or employee, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by Delaware Law, as
the same exists or may' hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said Law permitted the Corporation
to provide prior to such amendment) against all expenses, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
amounts paid or to be paid in settlement and amounts expended in seeking
indemnification granted to such person under applicable law, this bylaw or any
agreement with the Corporation) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer or employee and shall inure to the
benefit of his or her heirs, executors and administrators; provided, however,
that, except as provided in Section 8.2 of this Article VIII, the Corporation
shall indemnify any such person seeking indemnity in connection with an action,
suit or proceeding (or part thereof) initially such person only if (a) such
indemnification is expressly required to be made by law, (b) the action, suit or
proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation, (c) such indemnification is provided by the Corporation, in its
sole discretion, pursuant to the powers vested in the Corporation under the
Delaware General Corporation Law, or (d) the action, suit or proceeding (or part
thereof) is brought to establish or enforce a right to indemnification under an
indemnity agreement or any other statute or law or otherwise as required under
Section 145 of the Delaware General Corporation Law. Such right shall be a
contract right and shall include the right to be paid by the Corporation
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, unless the Delaware General Corporation
Law then so prohibits, the payment of such expenses incurred by a director or
officer of the Corporation in his or her capacity as a director or officer (and
not in any other capacity in which service was or is tendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of such proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it
should be determined ultimately that such director or officer is not entitled to
be indemnified under this Section or otherwise.
Section 8.2 Right of Claimant to Bring Suit. If a claim under Section 1 of
this Article VIII is not paid in full by the Corporation within ninety (90) days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if such suit is not frivolous or brought in bad faith,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. The burden of proving such claim shall be on the claimant. It shall be a
defense to any such action (other then an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to this
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that claimant has not
met the applicable standard of conduct.
Section 8.3 Non-Exclusivity of Rights. The rights conferred on any person
in Sections 8.1 and 8.2 shall not be exclusive of any other right which such
persons may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 8.4 Indemnification Contracts. The Board of Directors is
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if the
Board of Directors so determinates, greater than, those provided for in this
Article VIII.
Section 8.5 Insurance. The Corporation shall maintain insurance to the
extent reasonably available, at its expense, to protect itself and any such
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
Section 8.6 Effect of Amendment. Any amendment, repeal or modification of
any provision of this Article VIII by the stockholders and the directors of the
Corporation shall not adversely affect any right or protection of a director or
officer of the Corporation existing at the time of such amendment, repeal or
modification.
ARTICLE IX
AMENDMENTS
Section 9.1 Amendment of Bylaws. The Board of Directors is expressly
empowered to adopt, amend or repeal Bylaws of the Corporation. Any adoption,
amendment or repeal of Bylaws of the Corporation by the Board of Directors shall
require the approval of a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships
at the time any resolution providing for adoption, amendment or repeal is
presented to the Board). The stockholders shall also have power to adopt, amend
or repeal the Bylaws of the Corporation.