BYLAWS
OF
ACURX, INC
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation
in the State of Delaware shall be in the City of Wilmington, County of New
Castle.
Section 2. Other Offices. The corporation shall also have and maintain
an office or principal place of business at such place as may be fixed by
the Board of Directors, and may also have offices at such other places,
both within and without the State of Delaware as the Board of Directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
CORPORATE SEAL
Section 3. Corporate Seal. The Board of Directors may adopt a corporate
seal. The corporate seal shall consist of a die bearing the name of the
corporation and the inscription, "Corporate Seal-Delaware." Said seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE III
STOCKHOLDERS' MEETINGS
Section 4. Place Of Meetings. Meetings of the stockholders of the
corporation may be held at such place, either within or without the State
of Delaware, as may be determined from time to time by the Board of
Directors. The Board of Directors may, in its sole discretion, determine
that the meeting shall not be held at any place, but may instead be held
solely by means of remote communication as provided under the Delaware
General Corporation Law.
Section 5. Annual Meetings.
(a) The annual meeting of the stockholders of the corporation, for the
purpose of election of directors and for such other business as may
lawfully come before it, shall be held on such date and at such time as may
be designated from time to time by the Board of Directors. Nominations of
persons for election to the Board of Directors of the corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders: (i) pursuant to the corporation's notice
of meeting of stockholders; (ii) by or at the direction of the Board of
Directors; or (iii) by any stockholder of the corporation who was a
stockholder of record at the time of giving the stockholder's notice
provided for in the following paragraph, who is entitled to vote at the
meeting and who complied with the notice procedures set forth in Section 5.
(b) At an annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. For
nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of Section 5(a) of these
Bylaws, (i) the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation, (ii) such other business must
be a proper matter for stockholder action under DGCL, (iii) if the
stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the corporation with a Solicitation Notice
(as defined in clause (iii) of the last sentence of this Section 5(b)),
such stockholder or beneficial owner must, in the case of a proposal, have
delivered a proxy statement and form of proxy to holders of at least the
percentage of the corporation's voting shares required under applicable law
to carry any such proposal, or, in the case of a nomination or nominations,
have delivered a proxy statement and form of proxy to holders of a
percentage of the corporation's voting shares reasonably believed by such
stockholder or beneficial owner to be sufficient to elect the nominee or
nominees proposed to be nominated by such stockholder, and must, in either
case, have included in such materials the Solicitation Notice, and (iv) if
no Solicitation Notice relating thereto has been timely provided pursuant
to this section, the stockholder or beneficial owner proposing such
business or nomination must not have solicited a number of proxies
sufficient to have required the delivery of such a Solicitation Notice
under this Section 5. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the ninetieth (90th)
day nor earlier than the close of business on the one hundred twentieth
(120th) day prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is advanced more than thirty (30) days prior to or delayed by more
than thirty (30) days after the anniversary of the preceding year's annual
meeting, notice by the stockholder to be timely must be so delivered not
earlier than the close of business on the one hundred twentieth (120th) day
prior to such annual meeting and not later than the close of business on
the later of the ninetieth (90th) day prior to such annual meeting or the
tenth (10th) day following the day on which public announcement of the date
of such meeting is first made. In no event shall the public announcement
of an adjournment of an annual meeting commence a new time period for the
giving of a stockholder's notice as described above. Such stockholder's
notice shall set forth: (A) as to each person whom the stockholder
proposed to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and Rule 14a-
4(d) thereunder (including such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected);
(B) as to any other business that the stockholder proposes to bring before
the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting
and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (C) as
to the stockholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (i) the name and address of
such stockholder, as they appear on the corporation's books, and of such
beneficial owner, (ii) the class and number of shares of the corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner, and (iii) whether either such stockholder or beneficial
owner intends to deliver a proxy statement and form of proxy to holders of,
in the case of the proposal, at least the percentage of the corporation's
voting shares required under applicable law to carry the proposal or, in
the case of a nomination or nominations, a sufficient number of holders of
the corporation's voting shares to elect such nominee or nominees (an
affirmative statement of such intent, a "Solicitation Notice").
(c) Notwithstanding anything in the third sentence of Section 5(b) of
these Bylaws to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation is increased and
there is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the
corporation at least one hundred (100) days prior to the first anniversary
of the preceding year's annual meeting, a stockholder's notice required by
this Section 5 shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the
corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
corporation.
(d) Only such persons who are nominated in accordance with the
procedures set forth in this Section 5 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 5. Except as otherwise
provided by law, the Chairman of the meeting shall have the power and duty
to determine whether a nomination or any business proposed to be brought
before the meeting was made, or proposed, as the case may be, in accordance
with the procedures set forth in these Bylaws and, if any proposed
nomination or business is not in compliance with these Bylaws, to declare
that such defective proposal or nomination shall not be presented for
stockholder action at the meeting and shall be disregarded.
(e) Notwithstanding the foregoing provisions of this Section 5, in order
to include information with respect to a stockholder proposal in the proxy
statement and form of proxy for a stockholders' meeting, stockholders must
provide notice as required by the regulations promulgated under the 1934
Act. Nothing in these Bylaws shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the corporation proxy
statement pursuant to Rule 14a-8 under the 1934 Act.
(f) For purposes of this Section 5, "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 1934 Act.
Section 6. Special Meetings.
(a) Special meetings of the stockholders of the corporation may be
called, for any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the Chief Executive Officer, or (iii) the Board of
Directors pursuant to a resolution adopted by a majority of the 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 of Directors for adoption). At any time or times
that the corporation is subject to Section 2115(b) of the California
General Corporation Law ("CGCL"), stockholders holding five percent (5%) or
more of the outstanding shares shall have the right to call a special
meeting of stockholders only as set forth in Section 18(b) herein.
(b) If a special meeting is properly called by any person or persons
other than the Board of Directors, the request shall be in writing,
specifying the general nature of the business proposed to be transacted,
and shall be delivered personally or sent by certified or registered mail,
return receipt requested, to the Chairman of the Board of Directors, the
Chief Executive Officer, or the Secretary of the corporation. No business
may be transacted at such special meeting otherwise than specified in such
notice. The Board of Directors shall determine the time and place of such
special meeting, which shall be held not less than thirty-five (35) nor
more than one hundred twenty (120) days after the date of the receipt of
the request. Upon determination of the time and place of the meeting, the
officer receiving the request shall cause notice to be given to the
stockholders entitled to vote, in accordance with the provisions of
Section 7 of these Bylaws. Nothing contained in this paragraph (b) shall
be construed as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the Board of Directors may be held.
(c) Nominations of persons for election to the Board of Directors may be
made at a special meeting of stockholders at which directors are to be
elected pursuant to the corporation's notice of meeting (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
corporation who is a stockholder of record at the time of giving notice
provided for in these Bylaws who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this Section 6(c).
In the event the corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board of Directors,
any such stockholder may nominate a person or persons (as the case may be),
for election to such position(s) as specified in the corporation's notice
of meeting, if the stockholder's notice required by Section 5(b) of these
Bylaws shall be delivered to the Secretary at the principal executive
offices of the corporation not earlier than the close of business on the
one hundred twentieth (120th) day prior to such special meeting and not
later than the close of business on the later of the ninetieth (90th) day
prior to such meeting or the tenth (10th) day following the day on which
public announcement is first made of the date of the special meeting and of
the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a
stockholder's notice as described above.
Section 7. Notice Of Meetings. Except as otherwise provided by law,
notice, given in writing or by electronic transmission, of each meeting of
stockholders shall be given not less than ten (10) nor more than sixty (60)
days before the date of the meeting to each stockholder entitled to vote at
such meeting, such notice to specify the place, if any, date and hour, in
the case of special meetings, the purpose or purposes of the meeting, and
the means of remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at any such meeting.
If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such stockholder's address
as it appears on the records of the corporation. Notice of the time,
place, if any, and purpose of any meeting of stockholders may be waived in
writing, signed by the person entitled to notice thereof, or by electronic
transmission by such person, either before or after such meeting, and will
be waived by any stockholder by his attendance thereat in person, by remote
communication, if applicable, or by proxy, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Any stockholder so waiving notice of such
meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
Section 8. Quorum. At all meetings of stockholders, except where
otherwise provided by statute or by the Certificate of Incorporation, or by
these Bylaws, the presence, in person, by remote communication, if
applicable, or by proxy duly authorized, of the holders of a majority of
the outstanding shares of stock entitled to vote shall constitute a quorum
for the transaction of business. In the absence of a quorum, any meeting
of stockholders may be adjourned, from time to time, either by the chairman
of the meeting or by vote of the holders of a majority of the shares
represented thereat, but no other business shall be transacted at such
meeting. The stockholders present at a duly called or convened meeting, at
which a quorum is present, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum. Except as otherwise provided by statute or by
applicable stock exchange or Nasdaq rules, or by the Certificate of
Incorporation or these Bylaws, in all matters other than the election of
directors, the affirmative vote of the majority of shares present in
person, by remote communication, if applicable, or represented by proxy at
the meeting and entitled to vote generally on the subject matter shall be
the act of the stockholders. Except as otherwise provided by statute, the
Certificate of Incorporation or these Bylaws, directors shall be elected by
a plurality of the votes of the shares present in person, by remote
communication, if applicable, or represented by proxy at the meeting and
entitled to vote generally on the election of directors. Where a separate
vote by a class or classes or series is required, except where otherwise
provided by the statute or by the Certificate of Incorporation or these
Bylaws, a majority of the outstanding shares of such class or classes or
series, present in person, by remote communication, if applicable, or
represented by proxy duly authorized, shall constitute a quorum entitled to
take action with respect to that vote on that matter. Except where
otherwise provided by statute or by the Certificate of Incorporation or
these Bylaws, the affirmative vote of the majority (plurality, in the case
of the election of directors) of shares of such class or classes or series
present in person, by remote communication, if applicable, or represented
by proxy at the meeting shall be the act of such class or classes or
series.
Section 9. Adjournment And Notice Of Adjourned Meetings. Any meeting of
stockholders, whether annual or special, may be adjourned from time to time
either by the chairman of the meeting or by the vote of a majority of the
shares present in person, by remote communication, if applicable, or
represented by proxy at the meeting. When a meeting is adjourned to
another time or place, if any, notice need not be given of the adjourned
meeting if the time and place, if any, thereof are announced at the meeting
at which the adjournment is taken. At the adjourned meeting, the
corporation may transact any business which might have been transacted at
the original meeting. If the adjournment is for more than thirty (30) days
or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 10. Voting Rights. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the
stock records of the corporation on the record date, as provided in
Section 12 of these Bylaws, shall be entitled to vote at any meeting of
stockholders. Every person entitled to vote or execute consents shall have
the right to do so either in person, by remote communication, if
applicable, or by an agent or agents authorized by a proxy granted in
accordance with Delaware law. An agent so appointed need not be a
stockholder. No proxy shall be voted after three (3) years from its date
of creation unless the proxy provides for a longer period.
Section 11. Joint Owners Of Stock. If shares or other securities having
voting power stand of record in the names of two (2) or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in
common, tenants by the entirety, or otherwise, or if two (2) or more
persons have the same fiduciary relationship respecting the same shares,
unless the Secretary is given written notice to the contrary and is
furnished with a copy of the instrument or order appointing them or
creating the relationship wherein it is so provided, their acts with
respect to voting shall have the following effect: (a) if only one (1)
votes, his act binds all; (b) if more than one (1) votes, the act of the
majority so voting binds all; (c) if more than one (1) votes, but the vote
is evenly split on any particular matter, each faction may vote the
securities in question proportionally, or may apply to the Delaware Court
of Chancery for relief as provided in the DGCL, Section 217(b). If the
instrument filed with the Secretary shows that any such tenancy is held in
unequal interests, a majority or even-split for the purpose of
subsection (c) shall be a majority or even-split in interest.
Section 12. List Of Stockholders. The Secretary shall prepare and make,
at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at said meeting, arranged in
alphabetical order, showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to the
meeting, (a) on a reasonably accessible electronic network, provided that
the information required to gain access to such list is provided with the
notice of the meeting, or (b) during ordinary business hours, at the
principal place of business of the corporation. In the event that the
corporation determines to make the list available on an electronic network,
the corporation may take reasonable steps to ensure that such information
is available only to stockholders of the corporation. The list shall be
open to examination of any stockholder during the time of the meeting as
provided by law.
Section 13. Action Without Meeting.
(a) Unless otherwise provided in the Certificate of Incorporation, any
action required by statute to be taken at any annual or special meeting of
the stockholders, or any action which may be taken at any annual or special
meeting of the stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, or by electronic
transmission setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted.
(b) Every written consent or electronic transmission shall bear the date
of signature of each stockholder who signs the consent, and no written
consent or electronic transmission shall be effective to take the corporate
action referred to therein unless, within sixty (60) days of the earliest
dated consent delivered to the corporation in the manner herein required,
written consents or electronic transmissions signed by a sufficient number
of stockholders to take action are delivered to the corporation by delivery
to its registered office in the State of Delaware, its principal place of
business or an officer or agent of the corporation having custody of the
book in which proceedings of meetings of stockholders are recorded.
Delivery made to a corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested.
(c) Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing or by electronic
transmission and who, if the action had been taken at a meeting, would have
been entitled to notice of the meeting if the record date for such meeting
had been the date that written consents signed by a sufficient number of
stockholders to take action were delivered to the corporation as provided
in Section 228 (c) of the DGCL. If the action which is consented to is
such as would have required the filing of a certificate under any section
of the DGCL if such action had been voted on by stockholders at a meeting
thereof, then the certificate filed under such section shall state, in lieu
of any statement required by such section concerning any vote of
stockholders, that written consent has been given in accordance with
Section 228 of the DGCL.
(d) A telegram, cablegram or other electronic transmission consent to an
action to be taken and transmitted by a stockholder or proxyholder, or by a
person or persons authorized to act for a stockholder or proxyholder, shall
be deemed to be written, signed and dated for the purposes of this section,
provided that any such telegram, cablegram or other electronic transmission
sets forth or is delivered with information from which the corporation can
determine (i) that the telegram, cablegram or other electronic transmission
was transmitted by the stockholder or proxyholder or by a person or persons
authorized to act for the stockholder or proxyholder and (ii) the date on
which such stockholder or proxyholder or authorized person or persons
transmitted such telegram, cablegram or electronic transmission. The date
on which such telegram, cablegram or electronic transmission is transmitted
shall be deemed to be the date on which such consent was signed. No
consent given by telegram, cablegram or other electronic transmission shall
be deemed to have been delivered until such consent is reproduced in paper
form and until such paper form shall be delivered to the corporation by
delivery to its registered office in the State of Delaware, its principal
place of business or an officer or agent of the corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to a corporation's registered office shall be made by hand or
by certified or registered mail, return receipt requested. Notwithstanding
the foregoing limitations on delivery, consents given by telegram,
cablegram or other electronic transmission may be otherwise delivered to
the principal place of business of the corporation or to an officer or
agent of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded if, to the extent and in the manner
provided by resolution of the board of directors of the corporation. Any
copy, facsimile or other reliable reproduction of a consent in writing may
be substituted or used in lieu of the original writing for any and all
purposes for which the original writing could be used, provided that such
copy, facsimile or other reproduction shall be a complete reproduction of
the entire original in writing.
(e) Notwithstanding the foregoing, no such action by written consent or
by electronic transmission may be taken following the closing of the
initial public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "1933 Act"), covering the
offer and sale of Common Stock of the corporation to the public (the
"Initial Public Offering").
Section 14. Organization.
(a) At every meeting of stockholders, the Chairman of the Board of
Directors, or, if a Chairman has not been appointed or is absent, the
President, or, if the President is absent, a chairman of the meeting chosen
by a majority in interest of the stockholders entitled to vote, present in
person or by proxy, shall act as chairman. The Secretary, or, in his
absence, an Assistant Secretary directed to do so by the President, shall
act as secretary of the meeting.
(b) The Board of Directors of the corporation shall be entitled to make
such rules or regulations for the conduct of meetings of stockholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Directors, if any, the chairman of the meeting
shall have the right and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such chairman,
are necessary, appropriate or convenient for the proper conduct of the
meeting, including, without limitation, establishing an agenda or order of
business for the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, limitations on participation in
such meeting to stockholders of record of the corporation and their duly
authorized and constituted proxies and such other persons as the chairman
shall permit, restrictions on entry to the meeting after the time fixed for
the commencement thereof, limitations on the time allotted to questions or
comments by participants and regulation of the opening and closing of the
polls for balloting on matters which are to be voted on by ballot. The
date and time of the opening and closing of the polls for each matter upon
which the stockholders will vote at the meeting shall be announced at the
meeting. Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of stockholders shall not be required
to be held in accordance with rules of parliamentary procedure.
ARTICLE IV
DIRECTORS
Section 15. Number And Term Of Office. The authorized number of
directors of the corporation shall be fixed in accordance with the
Certificate of Incorporation. Directors need not be stockholders unless so
required by the Certificate of Incorporation. If for any cause, the
directors shall not have been elected at an annual meeting, they may be
elected as soon thereafter as convenient at a special meeting of the
stockholders called for that purpose in the manner provided in these
Bylaws.
Section 16. Powers. The powers of the corporation shall be exercised,
its business conducted and its property controlled by the Board of
Directors, except as may be otherwise provided by statute or by the
Certificate of Incorporation.
Section 17. Board of Directors.
(a) Directors shall be elected at each annual meeting of stockholders to
hold office until the next annual meeting. Each director shall hold office
either until the expiration of the term for which elected or appointed and
until a successor has been elected and qualified, or until such director's
earlier death, resignation or removal. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
(b) No stockholder entitled to vote for directors may cumulate votes to
which such stockholder is entitled, unless, at the time of such election,
the corporation is subject to section 2115(b) of the CGCL. During such time or
times that the corporation is subject to Section 2115(b) of the CGCL, every
stockholder entitled to vote at an election for directors may cumulate such
stockholder's votes and give one candidate a number of votes equal to the
number of directors to be elected multiplied by the number of votes to
which such stockholder's shares are otherwise entitled, or distribute the
stockholder's votes on the same principle among as many candidates as such
stockholder thinks fit. No stockholder, however, shall be entitled to
cumulate such stockholder's votes unless (i) the names of such candidate or
candidates have been placed in nomination prior to the voting and (ii) the
stockholder has given notice at the meeting, prior to the voting, of such
stockholder's intention to cumulate such stockholder's votes. If any
stockholder has given proper notice to cumulate votes, all stockholders may
cumulate their votes for any candidates who have been properly placed in
nomination. Under cumulative voting, the candidates receiving the highest
number of votes, up to the number of directors to be elected, are elected.
Section 18. Vacancies.
(a) Unless otherwise provided in the Certificate of Incorporation and
subject to the rights of the holders of any series of Preferred Stock, any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors shall,
unless the Board of Directors determines by resolution that any such
vacancies or newly created directorships shall be filled by stockholders,
be filled only by the affirmative vote of a majority of the directors then
in office, even though less than a quorum of the Board of Directors. Any
director elected in accordance with the preceding sentence shall hold
office for the remainder of the full term of the director for which the
vacancy was created or occurred and until such director's successor shall
have been elected and qualified. A vacancy in the Board of Directors shall
be deemed to exist under this Section 18 in the case of the death, removal
or resignation of any director.
(b) At any time or times that the corporation is subject to
Section 2115(b) of the CGCL, if, after the filling of any vacancy, the
directors then in office who have been elected by stockholders shall
constitute less than a majority of the directors then in office, then:
(1) Any holder or holders of an aggregate of five percent (5%)
or more of the total number of shares at the time outstanding having the
right to vote for those directors may call a special meeting of
stockholders; or
(2) The Superior Court of the proper county shall, upon
application of such stockholder or stockholders, summarily order a special
meeting of stockholders, to be held to elect the entire board, all in
accordance with Section 305(c) of the CGCL. The term of office of any
director shall terminate upon that election of a successor.
Section 19. Resignation. Any director may resign at any time by
delivering his or her notice in writing or by electronic transmission to
the Secretary, such resignation to specify whether it will be effective at
a particular time, upon receipt by the Secretary or at the pleasure of the
Board of Directors. If no such specification is made, it shall be deemed
effective at the pleasure of the Board of Directors. When one or more
directors shall resign from the Board of Directors, effective at a future
date, a majority of the directors then in office, including those who have
so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office for the unexpired
portion of the term of the Director whose place shall be vacated and until
his successor shall have been duly elected and qualified.
Section 20. Removal.
(a) During such time or times that the corporation is subject to
Section 2115(b) of the CGCL, the Board of Directors or any individual
director may be removed from office at any time without cause by the
affirmative vote of the holders of at least a majority of the outstanding
shares entitled to vote on such removal; provided, however, that unless the
entire Board is removed, no individual director may be removed when the
votes cast against such director's removal, or not consenting in writing to
such removal, would be sufficient to elect that director if voted
cumulatively at an election which the same total number of votes were cast
(or, if such action is taken by written consent, all shares entitled to
vote were voted) and the entire number of directors authorized at the time
of such director's most recent election were then being elected.
(b) At any time or times that the corporation is not subject to
Section 2115(b) of the CGCL and subject to any limitations imposed by law,
Section 20(a) above shall no longer apply and the Board of Directors or any
director may be removed from office at any time (i) with cause by the
affirmative vote of the holders of a majority of the voting power of all
then-outstanding shares of capital stock of the corporation entitled to
vote generally at an election of directors or (ii) without cause by the
affirmative vote of the holders of at least sixty-six and two-thirds
percent (66 2/3 %) of the voting power of all then-outstanding shares of
capital stock of the corporation entitled to vote generally at an election
of directors.
Section 21. Meetings.
(a) Regular Meetings. Unless otherwise restricted by the Certificate of
Incorporation, regular meetings of the Board of Directors may be held at
any time or date and at any place within or without the State of Delaware
which has been designated by the Board of Directors and publicized among
all directors, either orally or in writing, by telephone, including a
voice-messaging system or other system designed to record and communicate
messages, facsimile, telegraph or telex, or by electronic mail or other
electronic means. No further notice shall be required for regular meetings
of the Board of Directors.
(b) Special Meetings. Unless otherwise restricted by the Certificate of
Incorporation, special meetings of the Board of Directors may be held at
any time and place within or without the State of Delaware whenever called
by the Chairman of the Board, the President or a majority of the authorized
number of Directors.
(c) Meetings by Electronic Communications Equipment. Any member of the
Board of Directors, or of any committee thereof, may participate in a
meeting by means of conference telephone or other communications equipment
by means of which all persons participating in the meeting can hear each
other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(d) Notice of Special Meetings. Notice of the time and place of all
special meetings of the Board of Directors shall be orally or in writing,
by telephone, including a voice messaging system or other system or
technology designed to record and communicate messages, facsimile,
telegraph or telex, or by electronic mail or other electronic means, during
normal business hours, at least twenty-four (24) hours before the date and
time of the meeting. If notice is sent by US mail, it shall be sent by
first class mail, charges prepaid, at least three (3) days before the date
of the meeting. Notice of any meeting may be waived in writing, or by
electronic transmission, at any time before or after the meeting and will
be waived by any director by attendance thereat, except when the director
attends the meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is
not lawfully called or convened.
(e) Waiver of Notice. The transaction of all business at any meeting of
the Board of Directors, or any committee thereof, however called or
noticed, or wherever held, shall be as valid as though had at a meeting
duly held after regular call and notice, if a quorum be present and if,
either before or after the meeting, each of the directors not present who
did not receive notice shall sign a written waiver of notice or shall waive
notice by electronic transmission. All such waivers shall be filed with
the corporate records or made a part of the minutes of the meeting.
Section 22. Quorum And Voting.
(a) Unless the Certificate of Incorporation requires a greater number, a
quorum of the Board of Directors shall consist of a majority of the exact
number of directors fixed from time to time by the Board of Directors in
accordance with the Certificate of Incorporation; provided, however, at any
meeting whether a quorum be present or otherwise, a majority of the
directors present may adjourn from time to time until the time fixed for
the next regular meeting of the Board of Directors, without notice other
than by announcement at the meeting.
(b) At each meeting of the Board of Directors at which a quorum is
present, all questions and business shall be determined by the affirmative
vote of a majority of the directors present, unless a different vote be
required by law, the Certificate of Incorporation or these Bylaws.
Section 23. Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the
Board of Directors or committee, as the case may be, consent thereto in
writing or by electronic transmission, and such writing or writings or
transmission or transmissions are filed with the minutes of proceedings of
the Board of Directors or committee. Such filing shall be in paper form if
the minutes are maintained in paper form and shall be in electronic form if
the minutes are maintained in electronic form.
Section 24. Fees And Compensation. Directors shall be entitled to such
compensation for their services as may be approved by the Board of
Directors, including, if so approved, by resolution of the Board of
Directors, a fixed sum and expenses of attendance, if any, for attendance
at each regular or special meeting of the Board of Directors and at any
meeting of a committee of the Board of Directors. Nothing herein contained
shall be construed to preclude any director from serving the corporation in
any other capacity as an officer, agent, employee, or otherwise and
receiving compensation therefor.
Section 25. Committees.
(a) Executive Committee. The Board of Directors may appoint an
Executive Committee to consist of one (1) or more members of the Board of
Directors. The Executive Committee, to the extent permitted by law and
provided in the resolution of the Board of Directors shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in
reference to (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the DGCL to be
submitted to stockholders for approval, or (ii) adopting, amending or
repealing any bylaw of the corporation.
(b) Other Committees. The Board of Directors may, from time to time,
appoint such other committees as may be permitted by law. Such other
committees appointed by the Board of Directors shall consist of one (1) or
more members of the Board of Directors and shall have such powers and
perform such duties as may be prescribed by the resolution or resolutions
creating such committees, but in no event shall any such committee have the
powers denied to the Executive Committee in these Bylaws.
(c) Term. The Board of Directors, subject to any requirements of any
outstanding series of Preferred Stock and the provisions of subsections (a)
or (b) of this Bylaw, may at any time increase or decrease the number of
members of a committee or terminate the existence of a committee. The
membership of a committee member shall terminate on the date of his death
or voluntary resignation from the committee or from the Board of Directors.
The Board of Directors may at any time for any reason remove any individual
committee member and the Board of Directors may fill any committee vacancy
created by death, resignation, removal or increase in the number of members
of the committee. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee, and, in addition,
in the absence or disqualification of any member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place
of any such absent or disqualified member.
(d) Meetings. Unless the Board of Directors shall otherwise provide,
regular meetings of the Executive Committee or any other committee
appointed pursuant to this Section 25 shall be held at such times and
places as are determined by the Board of Directors, or by any such
committee, and when notice thereof has been given to each member of such
committee, no further notice of such regular meetings need be given
thereafter. Special meetings of any such committee may be held at any
place which has been determined from time to time by such committee, and
may be called by any Director who is a member of such committee, upon
notice to the members of such committee of the time and place of such
special meeting given in the manner provided for the giving of notice to
members of the Board of Directors of the time and place of special meetings
of the Board of Directors. Notice of any special meeting of any committee
may be waived in writing at any time before or after the meeting and will
be waived by any director by attendance thereat, except when the director
attends such special meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Unless otherwise provided by
the Board of Directors in the resolutions authorizing the creation of the
committee, a majority of the authorized number of members of any such
committee shall constitute a quorum for the transaction of business, and
the act of a majority of those present at any meeting at which a quorum is
present shall be the act of such committee.
Section 26. Organization. At every meeting of the directors, the
Chairman of the Board of Directors, or, if a Chairman has not been
appointed or is absent, the President (if a director), or if the President
is absent, the most senior Vice President (if a director), or, in the
absence of any such person, a chairman of the meeting chosen by a majority
of the directors present, shall preside over the meeting. The Secretary,
or in his absence, any Assistant Secretary directed to do so by the
President, shall act as secretary of the meeting.
ARTICLE V
OFFICERS
Section 27. Officers Designated. The officers of the corporation shall
include, if and when designated by the Board of Directors, the Chairman of
the Board of Directors, the President, one or more Vice Presidents, the
Secretary, the Chief Financial Officer and the Treasurer, all of whom shall
be elected at the annual organizational meeting of the Board of Directors.
The Board of Directors may also appoint one or more Assistant Secretaries,
Assistant Treasurers and such other officers and agents with such powers
and duties as it shall deem necessary. The Board of Directors may assign
such additional titles to one or more of the officers as it shall deem
appropriate. Any one person may hold any number of offices of the
corporation at any one time unless specifically prohibited therefrom by
law. The salaries and other compensation of the officers of the
corporation shall be fixed by or in the manner designated by the Board of
Directors.
Section 28. Tenure And Duties Of Officers.
(a) General. All officers shall hold office at the pleasure of the
Board of Directors and until their successors shall have been duly elected
and qualified, unless sooner removed. Any officer elected or appointed by
the Board of Directors may be removed at any time by the Board of
Directors. If the office of any officer becomes vacant for any reason, the
vacancy may be filled by the Board of Directors.
(b) Duties of Chairman of the Board of Directors. The Chairman of the
Board of Directors, when present, shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of
Directors shall perform other duties commonly incident to the office and
shall also perform such other duties and have such other powers, as the
Board of Directors shall designate from time to time. If there is no
President, then the Chairman of the Board of Directors shall also serve as
the Chief Executive Officer of the corporation and shall have the powers
and duties prescribed in paragraph (c) of this Section 28.
(c) Duties of President. The President shall preside at all meetings of
the stockholders and at all meetings of the Board of Directors, unless the
Chairman of the Board of Directors has been appointed and is present.
Unless some other officer has been elected Chief Executive Officer of the
corporation, the President shall be the chief executive officer of the
corporation and shall, subject to the control of the Board of Directors,
have general supervision, direction and control of the business and
officers of the corporation. The President shall perform other duties
commonly incident to the office and shall also perform such other duties
and have such other powers, as the Board of Directors shall designate from
time to time.
(d) Duties of Vice Presidents. The Vice Presidents may assume and
perform the duties of the President in the absence or disability of the
President or whenever the office of President is vacant. The Vice
Presidents shall perform other duties commonly incident to their office and
shall also perform such other duties and have such other powers as the
Board of Directors or the President shall designate from time to time.
(e) Duties of Secretary. The Secretary shall attend all meetings of the
stockholders and of the Board of Directors and shall record all acts and
proceedings thereof in the minute book of the corporation. The Secretary
shall give notice in conformity with these Bylaws of all meetings of the
stockholders and of all meetings of the Board of Directors and any
committee thereof requiring notice. The Secretary shall perform all other
duties provided for in these Bylaws and other duties commonly incident to
the office and shall also perform such other duties and have such other
powers, as the Board of Directors shall designate from time to time. The
President may direct any Assistant Secretary to assume and perform the
duties of the Secretary in the absence or disability of the Secretary, and
each Assistant Secretary shall perform other duties commonly incident to
the office and shall also perform such other duties and have such other
powers as the Board of Directors or the President shall designate from time
to time.
Section 29. Delegation Of Authority. The Board of Directors may from
time to time delegate the powers or duties of any officer to any other
officer or agent, notwithstanding any provision hereof.
Section 30. Resignations. Any officer may resign at any time by giving
notice in writing or by electronic transmission to the Board of Directors
or to the President or to the Secretary. Any such resignation shall be
effective when received by the person or persons to whom such notice is
given, unless a later time is specified therein, in which event the
resignation shall become effective at such later time. Unless otherwise
specified in such notice, the acceptance of any such resignation shall not
be necessary to make it effective. Any resignation shall be without
prejudice to the rights, if any, of the corporation under any contract with
the resigning officer.
Section 31. Removal. Any officer may be removed from office at any
time, either with or without cause, by the affirmative vote of a majority
of the directors in office at the time, or by the unanimous written consent
of the directors in office at the time, or by any committee or superior
officers upon whom such power of removal may have been conferred by the
Board of Directors.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE
CORPORATION
Section 32. Execution Of Corporate Instruments. The Board of Directors
may, in its discretion, determine the method and designate the signatory
officer or officers, or other person or persons, to execute on behalf of
the corporation any corporate instrument or document, or to sign on behalf
of the corporation the corporate name without limitation, or to enter into
contracts on behalf of the corporation, except where otherwise provided by
law or these Bylaws, and such execution or signature shall be binding upon
the corporation.
All checks and drafts drawn on banks or other depositaries on funds
to the credit of the corporation or in special accounts of the corporation
shall be signed by such person or persons as the Board of Directors shall
authorize so to do.
Unless authorized or ratified by the Board of Directors or within
the agency power of an officer, no officer, agent or employee shall have
any power or authority to bind the corporation by any contract or
engagement or to pledge its credit or to render it liable for any purpose
or for any amount.
Section 33. Voting Of Securities Owned By The Corporation. All stock
and other securities of other corporations owned or held by the corporation
for itself, or for other parties in any capacity, shall be voted, and all
proxies with respect thereto shall be executed, by the person authorized so
to do by resolution of the Board of Directors, or, in the absence of such
authorization, by the Chairman of the Board of Directors, the Chief
Executive Officer, the President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
Section 34. Form And Execution Of Certificates. Certificates for the
shares of stock of the corporation shall be in such form as is consistent
with the Certificate of Incorporation and applicable law. Every holder of
stock in the corporation shall be entitled to have a certificate signed by
or in the name of the corporation by the Chairman of the Board of
Directors, or the President or any Vice President and by the Treasurer or
Assistant Treasurer or the Secretary or Assistant Secretary, certifying the
number of shares owned by him in the corporation. Any or all of the
signatures on the certificate may be facsimiles. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent, or registrar before such certificate is issued, it may be
issued with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue. Each certificate shall state upon the face
or back thereof, in full or in summary, all of the powers, designations,
preferences, and rights, and the limitations or restrictions of the shares
authorized to be issued or shall, except as otherwise required by law, set
forth on the face or back a statement that the corporation will furnish
without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional, or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or
rights. Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner
thereof a written notice containing the information required to be set
forth or stated on certificates pursuant to this section or otherwise
required by law or with respect to this section a statement that the
corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative participating, optional
or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or
rights.
Section 35. Lost Certificates. A new certificate or certificates shall
be issued in place of any certificate or certificates theretofore issued by
the corporation alleged to have been lost, stolen, or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen, or destroyed. The corporation may require, as
a condition precedent to the issuance of a new certificate or certificates,
the owner of such lost, stolen, or destroyed certificate or certificates,
or the owner's legal representative, to agree to indemnify the corporation
in such manner as it shall require or to give the corporation a surety bond
in such form and amount as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate
alleged to have been lost, stolen, or destroyed.
Section 36. Transfers.
(a) Transfers of record of shares of stock of the corporation shall be
made only upon its books by the holders thereof, in person or by attorney
duly authorized, and upon the surrender of a properly endorsed certificate
or certificates for a like number of shares.
(b) The corporation shall have power to enter into and perform any
agreement with any number of stockholders of any one or more classes of
stock of the corporation to restrict the transfer of shares of stock of the
corporation of any one or more classes owned by such stockholders in any
manner not prohibited by the DGCL.
Section 37. Fixing Record Dates.
(a) In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall, subject to applicable law, not be more than sixty
(60) nor less than ten (10) days before the date of such meeting. If no
record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding
the day on which notice is given, or if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at
a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date
for the adjourned meeting.
(b) Prior to the Initial Public Offering, in order that the corporation
may determine the stockholders entitled to consent to corporate action in
writing without a meeting, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which date
shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors.
Any stockholder of record seeking to have the stockholders authorize or
take corporate action by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix a record date. The Board
of Directors shall promptly, but in all events within ten (10) days after
the date on which such a request is received, adopt a resolution fixing the
record date. If no record date has been fixed by the Board of Directors
within ten (10) days of the date on which such a request is received, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required by applicable law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be
taken is delivered to the corporation by delivery to its registered office
in the State of Delaware, its principal place of business or an officer or
agent of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the corporation's
registered office shall be by hand or by certified or registered mail,
return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law,
the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of
business on the day on which the Board of Directors adopts the resolution
taking such prior action.
(c) In order that the corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or
allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and which record
date shall be not more than sixty (60) days prior to such action. If no
record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 38. Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall
not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
Section 39. Execution Of Other Securities. All bonds, debentures and
other corporate securities of the corporation, other than stock
certificates (covered in Section 34), may be signed by the Chairman of the
Board of Directors, the President or any Vice President, or such other
person as may be authorized by the Board of Directors, and the corporate
seal impressed thereon or a facsimile of such seal imprinted thereon and
attested by the signature of the Secretary or an Assistant Secretary, or
the Chief Financial Officer or Treasurer or an Assistant Treasurer;
provided, however, that where any such bond, debenture or other corporate
security shall be authenticated by the manual signature, or where
permissible facsimile signature, of a trustee under an indenture pursuant
to which such bond, debenture or other corporate security shall be issued,
the signatures of the persons signing and attesting the corporate seal on
such bond, debenture or other corporate security may be the imprinted
facsimile of the signatures of such persons. Interest coupons appertaining
to any such bond, debenture or other corporate security, authenticated by a
trustee as aforesaid, shall be signed by the Treasurer or an Assistant
Treasurer of the corporation or such other person as may be authorized by
the Board of Directors, or bear imprinted thereon the facsimile signature
of such person. In case any officer who shall have signed or attested any
bond, debenture or other corporate security, or whose facsimile signature
shall appear thereon or on any such interest coupon, shall have ceased to
be such officer before the bond, debenture or other corporate security so
signed or attested shall have been delivered, such bond, debenture or other
corporate security nevertheless may be adopted by the corporation and
issued and delivered as though the person who signed the same or whose
facsimile signature shall have been used thereon had not ceased to be such
officer of the corporation.
ARTICLE IX
DIVIDENDS
Section 40. Declaration Of Dividends. Dividends upon the capital stock
of the corporation, subject to the provisions of the Certificate of
Incorporation and applicable law, if any, may be declared by the Board of
Directors pursuant to law at any regular or special meeting. Dividends may
be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the Certificate of Incorporation and applicable law.
Section 41. Dividend Reserve. Before payment of any dividend, there may
be set aside out of any funds of the corporation available for dividends
such sum or sums as the Board of Directors from time to time, in their
absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the corporation, or for such other purpose as the Board of
Directors shall think conducive to the interests of the corporation, and
the Board of Directors may modify or abolish any such reserve in the manner
in which it was created.
ARTICLE X
FISCAL YEAR
Section 42. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
ARTICLE XI
INDEMNIFICATION
Section 43. Indemnification Of Directors, Officers, Employees And Other
Agents.
(a) Directors and Officers. The corporation shall indemnify its
directors and officers to the fullest extent not prohibited by the DGCL or
any other applicable law; provided, however, that the corporation may
modify the extent of such indemnification by individual contracts with its
directors and officers; and, provided, further, that the corporation shall
not be required to indemnify any director or officer in connection with any
proceeding (or part thereof) initiated by such person unless (i) such
indemnification is expressly required to be made by law, (ii) the
proceeding was authorized by the Board of Directors of the corporation,
(iii) such indemnification is provided by the corporation, in its sole
discretion, pursuant to the powers vested in the corporation under the DGCL
or any other applicable law or (iv) such indemnification is required to be
made under subsection (d).
(b) Employees and Other Agents. The corporation shall have power to
indemnify its employees and other agents as set forth in the DGCL or any
other applicable law. The Board of Directors shall have the power to
delegate the determination of whether indemnification shall be given to any
such person to such officers or other persons as the Board of Directors
shall determine.
(c) Expenses. The corporation shall advance to any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director or officer of the corporation, or is or was serving at the request
of the corporation as a director or executive officer of another
corporation, partnership, joint venture, trust or other enterprise, prior
to the final disposition of the proceeding, promptly following request
therefor, all expenses incurred by any director or officer in connection
with such proceeding; provided, however, that if the DGCL requires, an
advancement of expenses incurred by a director or officer in his or her
capacity as a director and officers (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision
from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section 43 or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant
to paragraph (e) of this Section 43, no advance shall be made by the
corporation to an officer of the corporation (except by reason of the fact
that such officer is or was a director of the corporation in which event
this paragraph shall not apply) in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, if a determination is
reasonably and promptly made (i) by a majority vote of directors who were
not parties to the proceeding, even if not a quorum, or (ii) by a committee
of such directors designated by a majority vote of such directors, even
though less than a quorum, or (iii) if there are no such directors, or such
directors so direct, by independent legal counsel in a written opinion,
that the facts known to the decision-making party at the time such
determination is made demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be in
or not opposed to the best interests of the corporation.
(d) Enforcement. Without the necessity of entering into an express
contract, all rights to indemnification and advances to directors and
officers under this Bylaw shall be deemed to be contractual rights and be
effective to the same extent and as if provided for in a contract between
the corporation and the director or officer. Any right to indemnification
or advances granted by this Section 43 to a director or officer shall be
enforceable by or on behalf of the person holding such right in any court
of competent jurisdiction if (i) the claim for indemnification or advances
is denied, in whole or in part, or (ii) no disposition of such claim is
made within ninety (90) days of request therefor. The claimant in such
enforcement action, if successful in whole or in part, shall be entitled to
be paid also the expense of prosecuting the claim. In connection with any
claim for indemnification, the corporation shall be entitled to raise as a
defense to any such action that the claimant has not met the standards of
conduct that make it permissible under the DGCL or any other applicable law
for the corporation to indemnify the claimant for the amount claimed.
Neither the failure of the corporation (including its Board of Directors,
independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the
claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in the DGCL or any other applicable law, nor
an actual determination by the corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that claimant has not met the applicable
standard of conduct. In any suit brought by a director or officer to
enforce a right to indemnification or to an advancement of expenses
hereunder, the burden of proving that the director or officer is not
entitled to be indemnified, or to such advancement of expenses, under this
Section 43 or otherwise shall be on the corporation.
(e) Non-Exclusivity of Rights. The rights conferred on any person by
this Bylaw shall not be exclusive of any other right which such person may
have or hereafter acquire under any applicable statute, provision of the
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding office. The
corporation is specifically authorized to enter into individual contracts
with any or all of its directors, officers, employees or agents respecting
indemnification and advances, to the fullest extent not prohibited by the
DGCL, or by any other applicable law.
(f) Survival of Rights. The rights conferred on any person by this
Bylaw shall continue as to a person who has ceased to be a director or
officer, employee or other agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(g) Insurance. To the fullest extent permitted by the DGCL or any other
applicable law, the corporation, upon approval by the Board of Directors,
may purchase insurance on behalf of any person required or permitted to be
indemnified pursuant to this Section 43.
(h) Amendments. Any repeal or modification of this Section 43 shall
only be prospective and shall not affect the rights under this Bylaw in
effect at the time of the alleged occurrence of any action or omission to
act that is the cause of any proceeding against any agent of the
corporation.
(i) Saving Clause. If this Bylaw or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and officer to the
full extent not prohibited by any applicable portion of this Section 43
that shall not have been invalidated, or by any other applicable law. If
this Section 43 shall be invalid due to the application of the
indemnification provisions of another jurisdiction, then the corporation
shall indemnify each director and officer to the full extent under any
other applicable law.
(j) Certain Definitions. For the purposes of this Bylaw, the following
definitions shall apply:
(1) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution,
defense, settlement, arbitration and appeal of, and the giving of testimony
in, any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative.
(2) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness fees,
fines, amounts paid in settlement or judgment and any other costs and
expenses of any nature or kind incurred in connection with any proceeding.
(3) The term the "corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Section 43
with respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate existence had
continued.
(4) References to a "director," "executive officer," "officer,"
"employee," or "agent" of the corporation shall include, without
limitation, situations where such person is serving at the request of the
corporation as, respectively, a director, executive officer, officer,
employee, trustee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
(5) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the corporation" as
referred to in this Section 43.
ARTICLE XII
NOTICES
Section 44. Notices.
(a) Notice To Stockholders. Written notice to stockholders of
stockholder meetings shall be given as provided in Section 7 herein.
Without limiting the manner by which notice may otherwise be given
effectively to stockholders under any agreement or contract with such
stockholder, and except as otherwise required by law, written notice to
stockholders for purposes other than stockholder meetings may be sent by US
mail or nationally recognized overnight courier, or by facsimile, telegraph
or telex or by electronic mail or other electronic means.
(b) Notice To Directors. Any notice required to be given to any
director may be given by the method stated in subsection (a), as otherwise
provided in these Bylaws, or by overnight delivery service, facsimile,
telex or telegram, except that such notice other than one which is
delivered personally shall be sent to such address as such director shall
have filed in writing with the Secretary, or, in the absence of such
filing, to the last known post office address of such director.
(c) Affidavit Of Mailing. An affidavit of mailing, executed by a duly
authorized and competent employee of the corporation or its transfer agent
appointed with respect to the class of stock affected, or other agent,
specifying the name and address or the names and addresses of the
stockholder or stockholders, or director or directors, to whom any such
notice or notices was or were given, and the time and method of giving the
same, shall in the absence of fraud, be prima facie evidence of the facts
therein contained.
(d) Methods of Notice. It shall not be necessary that the same method
of giving notice be employed in respect of all recipients of notice, but
one permissible method may be employed in respect of any one or more, and
any other permissible method or methods may be employed in respect of any
other or others.
(e) Notice To Person With Whom Communication Is Unlawful. Whenever
notice is required to be given, under any provision of law or of the
Certificate of Incorporation or Bylaws of the corporation, to any person
with whom communication is unlawful, the giving of such notice to such
person shall not be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give such
notice to such person. Any action or meeting which shall be taken or held
without notice to any such person with whom communication is unlawful shall
have the same force and effect as if such notice had been duly given. In
the event that the action taken by the corporation is such as to require
the filing of a certificate under any provision of the DGCL, the
certificate shall state, if such is the fact and if notice is required,
that notice was given to all persons entitled to receive notice except such
persons with whom communication is unlawful.
(f) Notice to Stockholders Sharing an Address. Except as
otherwise prohibited under DGCL, any notice given under the provisions of
DGCL, the Certificate of Incorporation or the Bylaws shall be effective if
given by a single written notice to stockholders who share an address if
consented to by the stockholders at that address to whom such notice is
given. Such consent shall have been deemed to have been given if such
stockholder fails to object in writing to the corporation within 60 days of
having been given notice by the corporation of its intention to send the
single notice. Any consent shall be revocable by the stockholder by written
notice to the corporation.
ARTICLE XIII
AMENDMENTS
Section 45. The Board of Directors is expressly empowered to adopt,
amend or repeal the Bylaws of the corporation. Any adoption, amendment or
repeal of the Bylaws of the corporation by the Board of Directors shall
require the approval of a majority of the authorized number of directors.
The stockholders shall also have power to adopt, amend or repeal the Bylaws
of the corporation; provided, however, that, in addition to any vote of the
holders of any class or series of stock of the corporation required by law
or by the Certificate of Incorporation, the affirmative vote of the holders
of at least sixty-six and two-thirds percent (66 2/3 %) of the voting power
of all of the then-outstanding shares of the capital stock of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provision of the Bylaws of the corporation.
ARTICLE XIV
LOANS TO OFFICERS
Section 46. Loans To Officers. Except as otherwise prohibited by
applicable law, the corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
corporation or of its subsidiaries, including any officer or employee who
is a Director of the corporation or its subsidiaries, whenever, in the
judgment of the Board of Directors, such loan, guarantee or assistance may
reasonably be expected to benefit the corporation. The loan, guarantee or
other assistance may be with or without interest and may be unsecured, or
secured in such manner as the Board of Directors shall approve, including,
without limitation, a pledge of shares of stock of the corporation.
Nothing in these Bylaws shall be deemed to deny, limit or restrict the
powers of guaranty or warranty of the corporation at common law or under
any statute.