Exhibit
3.3
AMENDED
AND RESTATED
BYLAWS,
AS
AMENDED
OF
OCULUS
INNOVATIVE SCIENCES, INC.
(a
Delaware corporation)
TABLE
OF CONTENTS
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Page
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ARTICLE
1 Offices
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1
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1.1
Registered Office
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1
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1.2
Other Offices
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1
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ARTICLE
2 Meeting of Stockholders
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1
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2.1
Place of Meeting
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1
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2.2
Annual Meeting
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1
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2.3
Stockholder Proposals
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1
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2.4 Special
Meetings
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3
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2.5
Notice of Meetings |
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3
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2.6
List of Stockholders
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3
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2.7
Organization and Conduct of Business
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3
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2.8
Quorum
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4
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2.9
Adjournments
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4
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2.10
Voting Rights
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4
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2.11
Majority Vote
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4
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2.12
Record Date for Stockholder Notice and Voting
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4
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2.13
Proxies
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4
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2.14
Inspectors of Election
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4
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2.15
Action Without a Meeting
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5
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ARTICLE
3 Directors
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5
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3.1
Number, Election, Tenure and Qualifications
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5
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3.2
Enlargement and Vacancies
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5
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3.3
Resignation and Removal
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5
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3.4
Composition
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5
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3.5
Powers
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5
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3.6
Chairman of the Board
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5
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3.7
Place of Meetings
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5
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3.8
Annual Meetings
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6
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3.9
Regular Meetings
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6
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3.10
Special Meetings
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6
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3.11
Quorum, Action at Meeting, Adjournments
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6
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3.12
Action Without Meeting
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6
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3.13
Telephone Meetings
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6
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3.14
Committees
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6
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3.15
Fees and Compensation of Directors
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7
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3.16
Rights of Inspection
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7
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ARTICLE
4 Officers
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7
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4.1
Officers Designated
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7
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4.2
Election
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7
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TABLE
OF CONTENTS
(continued)
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Page
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4.3
Tenure
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7
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4.4
The Chief Executive Officer
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7
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4.5
The President
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7
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4.6
The Vice President
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7
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4.7
The Secretary
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8
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4.8
The Assistant Secretary
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8
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4.9
The Chief Financial Officer
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8
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4.10
The Treasurer and Assistant Treasurers
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8
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4.11
Bond
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8
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4.12
Delegation of Authority
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8
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ARTICLE
5 Notices
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8
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5.1
Delivery
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8
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5.2
Waiver of Notice
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9
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ARTICLE
6 Indemnification and Insurance
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9
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6.1
Indemnification
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9
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6.2
Advance Payment
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9
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6.3
Non-Exclusivity and Survival of Rights; Amendments
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10
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6.4
Insurance
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10
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6.5
Reliance
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10
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6.6
Severability
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10
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ARTICLE
7 Capital Stock
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10
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7.1
Certificates for Shares
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10
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7.2
Signatures on Certificates
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11
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7.3
Transfer of Stock
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11
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7.4
Registered Stockholders
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11
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7.5
Lost, Stolen or Destroyed Certificates
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11
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ARTICLE
8 Certain Transactions
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11
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8.1
Transactions with Interested Parties
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11
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8.2
Quorum
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12
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ARTICLE
9 General Provisions
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12
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9.1
Dividends
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12
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9.2
Dividend Reserve
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12
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9.3
Checks
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12
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9.4
Corporate Seal
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12
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9.5
Execution of Corporate Contracts and Instruments
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12
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9.6
Representation of Shares of Other Corporations
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12
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TABLE
OF CONTENTS
(continued)
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Page
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ARTICLE
10 Amendments
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12
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AMENDED
AND RESTATED
BYLAWS,
AS
AMENDED
OF
OCULUS
INNOVATIVE SCIENCES, INC.
(a
Delaware corporation)
ARTICLE
1
Offices
1.1 Registered Office.
The registered office of the corporation shall be set forth in the certificate
of incorporation of the corporation.
1.2 Other Offices. The
corporation may also have offices at such other places, either within or without
the State of Delaware, as the Board of Directors of the corporation (the
“Board”) may from time to time designate or the business of the corporation may
require.
ARTICLE
2
Meeting of
Stockholders
2.1 Place of Meeting.
Meetings of stockholders may be held at such place, either within or without of
the State of Delaware, as may be designated by or in the manner provided in
these bylaws, or, if not so designated, at the registered office of the
corporation or the principal executive offices of the corporation.
2.2 Annual Meeting.
Annual meetings of stockholders shall be held each year at such date and time as
shall be designated from time to time by the Board or the Chief Executive
Officer and stated in the notice of the meeting. At each such annual meeting,
the stockholders shall elect by a plurality vote the number of directors equal
to the number of directors of the class whose term expires at such meeting (or,
if fewer, the number of directors properly nominated and qualified for election)
to hold office until the third succeeding annual meeting of stockholders after
their election. The stockholders shall also transact such other business as may
properly be brought before the meeting.
To be
properly brought before the annual meeting, business must be (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board or the Chief Executive Officer, (b) otherwise
properly brought before the meeting by or at the direction of the Board or the
Chief Executive Officer, or (c) otherwise properly brought before the
meeting by a stockholder of record. A motion related to business proposed to be
brought before any stockholders’ meeting may be made by any stockholder entitled
to vote if the business proposed is otherwise proper to be brought before the
meeting. However, any such stockholder may propose business to be brought before
a meeting only if such stockholder has, in accordance with the provisions
of Section 2.3, given timely notice to the Secretary of the corporation in
proper written form of the stockholder’s intent to propose such
business.
2.3 Stockholder
Proposals.
(a) Stockholder Proposals
Relating to Nominations for and Election of Directors.
(i) Nominations
by a stockholder of candidates for election to the Board by stockholders at any
meeting of stockholders may be made only if the stockholder complies with the
procedures set forth in this Section 2.3(a), and any candidate proposed by
a stockholder not nominated in accordance with such provisions shall not be
considered or acted upon for execution at such meeting of stockholders. A
proposal by a stockholder for the nomination of a candidate for election by
stockholders as a director at any meeting of stockholders at which directors are
to be elected may be made only by notice in writing, delivered by a nationally
recognized courier service or mailed by first class United States mail, postage
or delivery charges prepaid, within the time limits specified in
Section 2.3(c).
(ii) A
stockholder’s notice to the Secretary shall set forth (A) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director: (I) the name, age, business address and, if known, residence
address of each such person, (II) the principal occupation or employment of
each such person for the past five years, (III) the class, series and
number of shares of the corporation that are beneficially owned and of record by
each such person and beneficial owner, and the earliest date of acquisition of
any such capital stock, (IV) a description of any arrangement or
understanding between each such person and the stockholder making such
nomination with respect to such person’s proposal for nomination and election as
a director and actions to be proposed or taken by such person if elected a
director, (V) the written consent of each person so proposed to serve as a
director if nominated and elected as a director and (VI) any other information
that would be required to be provided by the stockholder pursuant to the
Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder (collectively, the “1934 Act”) in such stockholder’s capacity as a
proponent of a stockholder proposal if proxies were to be solicited for the
election as a director of each person whom the stockholder proposes; and
(B) as to the stockholder giving notice, (I) the name and record
address of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made and (II) the class, series and number of shares of the
corporation that are owned beneficially and of record by the stockholder and
such beneficial owner.
(b) Stockholder Proposals
Relating to Matters Other Than Nominations for and Elections of
Directors.
(i) A
stockholder of the corporation may bring such business (other than a nomination
of a candidate for election as a director, which is covered by
Section 2.3(a)) (a “Stockholder Matter”) before any meeting of stockholders
only if such Stockholder Matter is a proper matter for stockholder action and
such stockholder shall have provided notice in writing, delivered by a
nationally recognized courier service or mailed by first class United States
mail, postage or delivery charges prepaid, within the time limits specified in
Section 2.3(c); provided, however, that a
proposal submitted by a stockholder for inclusion in the corporation’s proxy
statement for an annual meeting that is appropriate for inclusion therein and
otherwise complies with the provisions of Rule 14a-8 under the 1934
Act (including timeliness) shall be deemed to have also been submitted on a
timely basis pursuant to this Section 2.3.
(ii) A
stockholder’s notice to the Secretary of a proposal of a Stockholder Matter
shall set forth (A) as to each matter the stockholder proposes to bring
before the meeting a brief description of the business desired to be brought
before the meeting, (I) the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event that such
business includes a proposal to amend these bylaws of the corporation, the
language of the proposed amendment), (II) the reasons for conducting such
business at the meeting and (III) any other information that would be
required to be provided by the stockholder pursuant to Section 14 of the
1934 Act in such stockholder’s capacity as a proponent of a stockholder proposal
if proxies were solicited for stockholder consideration of such Stockholder
Matter at a meeting of stockholders, and (B) as to the stockholder giving
Notice, (I) the name and record address of the stockholder proposing such
business and the beneficial owner, if any, on whose behalf the proposal is made,
(II) the class, series and number of shares of the corporation that are
owned beneficially and of record by the stockholder and such beneficial owner
and (III) any material interest of the stockholder in such
business.
(c) Time for Notice of
Stockholder Proposals Relating to Nominations or Stockholder
Matters.
(i) In
the case of an annual meeting of stockholders, to be timely, any written
proposal of a nomination or of a Stockholder Matter must be received at the
principal executive offices of the corporation addressed to the attention of the
Secretary of the corporation not earlier than ninety (90) days nor more
than one hundred twenty (120) days in advance of the one-year anniversary
of the date the corporation’s proxy statement was released to the stockholders
in connection with the previous year’s annual meeting of
stockholders; provided,
however, that in the event that no annual meeting was held in the
previous year or the date of the annual meeting has been changed by more than
thirty (30) days from the date contemplated at the time of the previous
year’s proxy statement, notice by the stockholder must be received by the
Secretary of the corporation not later than the close of business on the later
of (x) the ninetieth (90th) day prior to such annual meeting and
(y) the seventh (7th) day following the day on which public announcement of
the date of such meeting is first made (or, in the case of (x) and (y), if
such day is not a business day, then the close of the next business day). For
the purposes of these bylaws, “public announcement” shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission. In no event shall the
public announcement of an adjournment or postponement of any meeting of
stockholders commence a new time period (or extend any time period) for the
giving of stockholder’s notice as described in these bylaws.
(ii) In
the case of a special meeting of stockholders, to be timely, any written
proposal of a nomination or of a Stockholder Matter must be delivered by a
nationally recognized courier service or mailed by first class United States
mail, postage or delivery charges prepaid, and received at the principal
executive offices of the corporation addressed to the attention of the Secretary
of the corporation not later than the close of business on the seventh (7th) day
following the earlier of (x) the date that the corporation mailed notice to
its stockholders that a special meeting of stockholders will be held and
(y) the date on which public announcement of the date of such meeting is
first made (or, in the case of (x) or (y), if such day is not a business
day, then the close of the next business day).
(d) Determination of Defective
Notice. Notwithstanding anything in these bylaws to the contrary, no
nomination or Stockholder Matter shall be presented at a meeting of stockholders
except in accordance with the procedures set forth in this Section 2.3, and
any nomination or Stockholder Matter not submitted in accordance with such
provisions shall not be considered or acted upon at any meeting of stockholders.
The Chairman of the Board (or such other person presiding at a meeting of
stockholders in accordance with these bylaws) shall, if the facts warrant,
determine and declare to a meeting of stockholders that a proposal of a
nomination or of a Stockholder Matter was not properly brought before the
meeting in accordance with the provisions of this Section 2.3, and if he or
she should so determine, he or she shall so declare to the meeting and any such
defective nomination or Stockholder Matter shall be disregarded.
2.4 Special Meetings.
Special meetings of the stockholders may be called for any purpose or purposes,
unless otherwise prescribed by statute or by the certificate of incorporation,
by the Secretary only at the request of the Chairman of the Board, the Chief
Executive Officer or by a resolution duly adopted by the affirmative vote of a
majority of the Board. Such request shall state the purpose or purposes of the
proposed meeting. Business transacted at any special meeting shall be limited to
matters relating to the purpose or purposes stated in the notice of
meeting.
2.5 Notice of Meetings.
Except as otherwise provided by law, written notice of each meeting of
stockholders, annual or special, stating the place, if any, date and time of the
meeting, the means of remote communications, if any, by which stockholders and
proxy holders may be deemed to be present in person and vote at such meeting,
and, in the case of a special meeting, the purpose or purposes for which such
special meeting is called, shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
When a
meeting is adjourned to another place, date or time, 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, if any, date, time
and means of remote communications, if any, of the adjourned meeting shall be
given in conformity herewith. At any adjourned meeting, any business may be
transacted that might have been transacted at the original meeting.
2.6 List of Stockholders.
The officer in charge of the stock ledger of the corporation or the transfer
agent shall prepare and make, at least ten (10) days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, for a period of at least ten days prior to the meeting,
(i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the
notice of the meeting, or (ii) during ordinary business hours, at the
principal place of business of the corporation. If the meeting is to be held at
a place, then the list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. If the meeting is to be held solely by means of
remote communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to gain access to such list
shall be provided with the notice of the meeting.
2.7 Organization and Conduct of
Business. The Chairman of the Board or, in his or her absence, the Chief
Executive Officer or President of the corporation or, in their absence, such
person as the Board may have designated or, in the absence of such a person,
such person as may be chosen by the holders of a majority of the shares entitled
to vote who are present, in person or by proxy, shall call to order any meeting
of the stockholders and act as chairman of the meeting. In the absence of the
Secretary of the corporation, the secretary of the meeting shall be such person
as the chairman of the meeting appoints.
The
chairman of any meeting of stockholders shall determine the order of business
and the procedure at the meeting, including such regulation of the manner of
voting and the conduct of discussion as seems to him or her in
order.
2.8 Quorum. Except where
otherwise provided by law or the certificate of incorporation of the corporation
or these bylaws, the holders of a majority of the stock issued and outstanding
and entitled to vote, present in person or represented in proxy, shall
constitute a quorum at all meetings of the stockholders.
2.9 Adjournments. Any
meeting of stockholders may be adjourned from time to time to any other time and
to any other place at which a meeting of stockholders may be held under these
bylaws, which time and place shall be announced at the meeting, by a majority of
the stockholders present in person or represented by proxy at the meeting and
entitled to vote, though less than a quorum, or, if no stockholder is present or
represented by proxy, by any officer entitled to preside at or to act as
secretary of such meeting, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the original meeting. If the
adjournment is for more than thirty 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.
2.10 Voting Rights. Unless
otherwise provided in the certificate of incorporation of the corporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote
for each share of the capital stock having voting power held by such
stockholder.
2.11 Majority Vote. When a
quorum is present at any meeting, the vote of the holders of a majority of the
stock having voting power present in person or represented by proxy and entitled
to vote with respect to that matter shall decide any question brought before
such meeting, unless the question is one upon which by express provision of the
statutes or of the certificate of incorporation of the corporation or
of these bylaws, a different vote is required in which case such express
provision shall govern and control the decision of such question.
2.12 Record Date for Stockholder
Notice and Voting. For purposes of determining the stockholders entitled
to notice of, or to vote at, any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any right in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board may fix, in advance, a record date, which shall not be more
than sixty (60) days nor fewer than ten (10) days before the date of
any such meeting nor more than sixty (60) days before any other action to
which the record date relates. 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 may fix a new record date for the adjourned meeting. If the Board does not
so fix a record date, 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 business day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held. The record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board adopts the resolution relating to such purpose.
2.13 Proxies. Each
stockholder entitled to vote at a meeting of stockholders, or to express consent
or dissent to corporate action in writing without a meeting, may authorize
another person or persons to act for such stockholder by proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. All proxies must be filed with the Secretary
of the corporation at the beginning of each meeting in order to be counted in
any vote at the meeting. Subject to the limitation set forth in the last clause
of the first sentence of this Section 2.13, a duly executed proxy that does
not state that it is irrevocable shall continue in full force and effect unless
(i) revoked by the person executing it, before the vote pursuant to that
proxy, by a writing delivered to the corporation stating that the proxy is
revoked or by a subsequent proxy executed by, or attendance at the meeting and
voting in person by, the person executing the proxy, or (ii) written notice
of the death or incapacity of the maker of that proxy is received by the
corporation before the vote pursuant to that proxy is counted.
2.14 Inspectors of
Election. The corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors of election to act at the meeting
and make a written report thereof. The corporation may designate one or more
persons to act as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is able to act at a meeting of stockholders,
the person presiding at the meeting shall appoint one or more inspectors to act
at the meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability.
2.15 Action Without a
Meeting. No action required or permitted to be taken at any annual or
special meeting of the stockholders of the corporation may be taken without a
meeting and the power of the stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
ARTICLE
3
Directors
3.1 Number, Election, Tenure and
Qualifications. The number of directors that shall constitute the entire
Board shall not be less than five (5) nor more than nine (9), and initially
shall be set at seven (7); provided, however, that the
number of directors that shall constitute the entire Board shall be fixed from
time to time by resolution adopted by a majority of the entire Board. The
classes of directors that shall constitute the entire Board shall be as provided
in the certificate of incorporation of the corporation.
The
directors shall be elected at the annual meetings of the stockholders, except as
otherwise provided in Section 3.2, and each director elected shall hold
office until such director’s successor is elected and qualified or until such
director’s earlier resignation, removal, death or incapacity.
Subject
to the rights of holders of any class or series of stock having a preference
over the common stock as to dividends or upon liquidation, nominations of
persons for election to the Board by or at the direction of the Board may be
made by any nominating committee or person appointed by the Board; nominations
may also be made by any stockholder of record of the corporation entitled to
vote for the election of directors at the applicable meeting who complies with
the notice procedures set forth in Section 2.3(a). Such nominations, other
than those made by or at the direction of the Board, shall be made within the
time limits specified in Section 2.3(c). Such stockholder’s notice to the
Secretary shall set forth the information specified in Section
2.3(a)(ii).
3.2 Enlargement and
Vacancies. The number of members of the Board may be increased at any
time as provided in Section 3.1 above. Sole power to fill vacancies and
newly created directorships resulting from any increase in the authorized number
of directors shall be vested in the Board through action by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director, and each director so chosen shall hold office until the next annual
election at which the term of the class to which they have been elected expires
and until such director’s successor is duly elected and qualified or until such
director’s earlier resignation, removal from office, death or incapacity. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute. In the event of a vacancy in the Board, the
remaining directors, except as otherwise provided by law or these bylaws, may
exercise the powers of the full board until the vacancy is filled.
3.3 Resignation and
Removal. Any director may resign at any time upon written notice to the
corporation at its principal place of business or to the Chief Executive Officer
or the Secretary. Such resignation shall be effective upon receipt of such
notice unless the notice specifies such resignation to be effective at some
other time or upon the happening of some other event. Any director or the entire
Board may be removed by the holders of a majority of the shares then entitled to
vote at an election of directors, unless otherwise specified by law or the
certificate of incorporation of the corporation.
3.4 Composition. The
corporation shall use commercially reasonable efforts to ensure that a majority
of the members of the Board qualify as “independent directors” (each an
“Independent Director”) under the then current rules and regulations of the
United States Securities and Exchange Commission and the primary stock exchange,
stock market or quotation system on which the corporation’s stock is then listed
or quoted, as applicable.
3.5 Powers. The business
of the corporation shall be managed by or under the direction of the Board,
which may exercise all such powers of the corporation and do all such lawful
acts and things as are not by statute or by the certificate of incorporation of
the corporation or by these bylaws directed or required to be exercised or done
by the stockholders.
3.6 Chairman of the
Board. If the Board appoints a Chairman of the Board, such Chairman
shall, when present, preside at all meetings of the stockholders and the Board.
The Chairman shall perform such duties and possess such powers as are
customarily vested in the office of the Chairman of the Board or as may be
vested in the Chairman by the Board.
3.7 Place of Meetings.
The Board may hold meetings, both regular and special, either within or without
the State of Delaware.
3.8 Annual Meetings. The
annual meetings of the Board shall be held immediately following the annual
meeting of stockholders, and no notice of such meeting shall be necessary to the
Board, provided a quorum shall be present, or shall be held at the next
regularly scheduled meeting of the Board or at such other date, time and place
as shall be designated from time to time by the Board and stated in the notice
of the meeting. The annual meetings shall be for the purposes of organization,
and an election of officers and the transaction of other business.
3.9 Regular Meetings.
Regular meetings of the Board may be held without notice at such time and place
as may be determined from time to time by the Board; provided that any director
who is absent when such a determination is made shall be given prompt notice of
such determination.
3.10 Special Meetings.
Special meetings of the Board may be called by the Chairman of the Board, the
Chief Executive Officer, the President or the Secretary, or on the written
request of two or more directors, or by one director in the event that there is
only one director in office. Notice of the time and place, if any, of special
meetings shall be delivered personally or by telephone to each director, or sent
by first-class mail or commercial delivery service, facsimile transmission, or
by electronic mail or other electronic means, charges prepaid, sent to such
director’s business or home address as they appear upon the records of the
corporation. In case such notice is mailed, it shall be deposited in the United
States mail at least four (4) days prior to the time of holding of the
meeting. In case such notice is delivered personally or by telephone or by
commercial delivery service, facsimile transmission, or electronic mail or other
electronic means, it shall be so delivered at least twenty-four (24) hours
prior to the time of the holding of the meeting. A notice or waiver of notice of
a meeting of the Board need not specify the purposes of the
meeting.
3.11 Quorum, Action at Meeting,
Adjournments. At all meetings of the Board, a majority of directors then
in office, but in no event less than one-third (1/3) of the entire
Board, shall constitute a quorum for the transaction of business and the
act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board, except as may be otherwise specifically
provided by law or by the certificate of incorporation of the corporation. For
purposes of this Section, the term “entire Board” shall mean the number of
directors last fixed by directors in accordance with these bylaws; provided, however, that if
fewer than all the number of directors so fixed have been elected (by the
stockholders or the Board), the “entire Board” shall mean the greatest number of
directors so elected to hold office at any one time pursuant to such
authorization. If a quorum shall not be present at any meeting of the board of
directors, a majority of the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
3.12 Action Without
Meeting. Unless otherwise restricted by the certificate of incorporation
of the corporation or these bylaws, any action required or permitted to be taken
at any meeting of the Board or of any committee thereof may be taken without a
meeting, if all members of the Board or committee, as the case may be, consent
thereto in writing or by electronic transmission, and the writing or writings or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board or committee.
3.13 Telephone Meetings.
Unless otherwise restricted by the certificate of incorporation of the
corporation or these bylaws, any member of the Board or any committee thereof
may participate in a meeting of the Board or of any committee, as the case may
be, by means of conference telephone or by any form of communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at the
meeting.
3.14 Committees. The Board
may, by resolution passed by a majority of the whole Board, designate one or
more committees, each committee to consist of one or more of the directors of
the corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members present at any meeting and not disqualified
from voting, whether or not the member or members present constitute a quorum,
may unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board, shall have and may exercise all
the powers and authority of the Board 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 of these bylaws. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board. Each committee shall keep regular minutes of its meetings
and make such reports to the Board as the Board may request. Except as the Board
may otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by the directors or in such rules, its
business shall be conducted as nearly as possible in the same manner as is
provided in these bylaws for the conduct of its business by the
Board.
3.15 Fees and Compensation of
Directors. Unless otherwise restricted by the certificate of
incorporation of the corporation or these bylaws, the Board shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board and may be paid a
fixed sum for attendance at each meeting of the Board or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
3.16 Rights of Inspection.
Any director shall have the right to examine the corporation’s stock ledger, a
list of its stockholders and its other books and records for a purpose
reasonably related to his or her position as a director.
ARTICLE
4
Officers
4.1 Officers Designated.
The officers of the corporation shall be chosen by the Board and shall be a
Chief Executive Officer, a President, a Secretary and a Chief Financial Officer
or Treasurer. The Board may also choose a Chief Operating Officer, one or more
Vice Presidents, and one or more assistant Secretaries or assistant Treasurers.
Any number of offices may be held by the same person, unless the certificate of
incorporation of the corporation or these bylaws otherwise provide.
4.2 Election. The Board
at its first meeting after each annual meeting of stockholders shall choose a
Chief Executive Officer, a President, a Secretary and a Chief Financial Officer
or Treasurer. Other officers may be appointed by the Board of Directors at such
meeting, at any other meeting, or by written consent or may be appointed by the
Chief Executive Officer pursuant to a delegation of authority from the
Board.
4.3 Tenure. Each officer
of the corporation shall hold office until such officer’s successor is elected
and qualified, unless a different term is specified in the vote choosing or
appointing such officer, or until such officer’s earlier death, resignation,
removal or incapacity. Any officer elected or appointed by the Board or by the
Chief Executive Officer may be removed with or without cause at any time by the
affirmative vote of a majority of the Board or a committee duly authorized to do
so, except that any officer appointed by the Chief Executive Officer may also be
removed at any time by the Chief Executive Officer. Any vacancy occurring in any
office of the corporation may be filled by the Board, at its discretion. Any
officer may resign by delivering such officer’s written resignation to the
corporation at its principal place of business or to the Chief Executive Officer
or the Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
4.4 The Chief Executive
Officer. Subject to such supervisory powers, if any, as may be given by
the Board to the Chairman of the Board, the Chief Executive Officer shall
preside at all meetings of the stockholders and in the absence of the Chairman
of the Board, or if there be none, at all meetings of the Board, shall have
general and active management of the business of the corporation and shall
see that all orders and resolutions of the Board are carried into effect. He or
she shall execute bonds, mortgages and other contracts requiring a seal, under
the seal of the corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board to some other officer or agent of the
corporation.
4.5 The President. The
President shall, in the event there be no Chief Executive Officer or in the
absence of the Chief Executive Officer or in the event of his or her disability
or refusal to act, perform the duties of the Chief Executive Officer, and when
so acting, shall have the powers of and be subject to all the restrictions upon
the Chief Executive Officer. The President shall perform such other duties and
have such other powers as may from time to time be prescribed for such person by
the Board, the Chairman of the Board, the Chief Executive Officer or these
bylaws.
4.6 The Vice President.
The Vice President (or in the event there be more than one, the Vice Presidents
in the order designated by the directors, or in the absence of any designation,
in the order of their election), shall, in the absence of the President or in
the event of his or her disability or refusal to act, perform the duties of the
President, and when so acting, shall have the powers of and be subject to all
the restrictions upon the President. The Vice President(s) shall perform such
other duties and have such other powers as may from time to time be prescribed
for them by the Board, the President, the Chairman of the Board or these
bylaws.
4.7 The Secretary. The
Secretary shall attend all meetings of the Board and the stockholders and record
all votes and the proceedings of the meetings in a book to be kept for that
purpose and shall perform like duties for the standing committees, when
required. The Secretary shall give, or cause to be given, notice of all meetings
of stockholders and special meetings of the Board, and shall perform such other
duties as may from time to time be prescribed by the Board, the Chairman of the
Board or the Chief Executive Officer, under whose supervision he or she shall
act. The Secretary shall have custody of the seal of the corporation, and the
Secretary, or an Assistant Secretary, shall have authority to affix the same to
any instrument requiring it, and, when so affixed, the seal may be attested by
his or her signature or by the signature of such Assistant Secretary. The Board
may give general authority to any other officer to affix the seal of the
corporation and to attest the affixing thereof by his or her signature. The
Secretary shall keep, or cause to be kept, at the principal executive office or
at the office of the corporation’s transfer agent or registrar, as determined by
resolution of the Board, a share register, or a duplicate share register,
showing the names of all stockholders and their addresses, the number and
classes of shares held by each, the number and date of certificates issued for
the same and the number and date of cancellation of every certificate
surrendered for cancellation.
4.8 The Assistant
Secretary. The Assistant Secretary, or if there be more than one, any
Assistant Secretaries in the order designated by the Board (or in the absence of
any designation, in the order of their election) shall assist the Secretary in
the performance of his or her duties and, in the absence of the Secretary or in
the event of his or her inability or refusal to act, perform the duties and
exercise the powers of the Secretary and shall perform such other duties and
have such other powers as may from time to time be prescribed by the
Board.
4.9 The Chief Financial
Officer. The Chief Financial Officer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board. The
Chief Financial Officer shall disburse the funds of the corporation as may be
ordered by the Board, taking proper vouchers for such disbursements, and shall
render to the Chief Executive Officer and the Board, at its regular meetings, or
when the Board so requires, an account of all his or her transactions as Chief
Financial Officer and of the financial condition of the corporation. The Chief
Financial Officer shall perform such other duties and have other powers as may
from time to time be prescribed by the Board of Directors or the Chief Executive
Officer.
4.10 The Treasurer and Assistant
Treasurers. The Treasurer (if one is appointed) shall have such duties as
may be specified by the Chief Financial Officer to assist the Chief Financial
Officer in the performance of his or her duties and to perform such other duties
and have other powers as may from time to time be prescribed by the Board or the
Chief Executive Officer. It shall be the duty of any Assistant Treasurers to
assist the Treasurer in the performance of his or her duties and to perform such
other duties and have other powers as may from time to time be prescribed by the
Board or the Chief Executive Officer.
4.11 Bond. If required by
the Board, any officer shall give the corporation a bond in such sum and with
such surety or sureties and upon such terms and conditions as shall be
satisfactory to the Board, including without limitation a bond for the faithful
performance of the duties of such officer’s office and for the restoration to
the corporation of all books, papers, vouchers, money and other property of
whatever kind in such officer’s possession or under such officer’s control and
belonging to the corporation.
4.12 Delegation of
Authority. The Board may from time to time delegate the powers or duties
of any officer to any other officers or agents, notwithstanding any provision
hereof.
ARTICLE
5
Notices
5.1 Delivery. Whenever,
under the provisions of law, or of the certificate of incorporation of the
corporation or these bylaws, written notice is required to be given to any
director or stockholder, such notice may be given by mail, addressed to such
director or stockholder, at such person’s address as it appears on the records
of the corporation, with postage thereon prepaid, and such notice shall be
deemed to be given at the time when the same shall be deposited in the United
States mail or delivered to a nationally recognized courier service. Unless
written notice by mail is required by law, written notice may also be given by
commercial delivery service, facsimile transmission, electronic means or similar
means addressed to such director or stockholder at such person’s address as it
appears on the records of the corporation, in which case such notice shall be
deemed to be given when delivered into the control of the persons charged with
effecting such transmission, the transmission charge to be paid by the
corporation or the person sending such notice and not by the addressee. Oral
notice or other in-hand delivery, in person or by telephone, shall be deemed
given at the time it is actually given.
5.2 Waiver of Notice.
Whenever any notice is required to be given under the provisions of law or of
the certificate of incorporation of the corporation or of these bylaws, a
written waiver, signed by the person entitled to notice, or a waiver by
electronic transmission by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors or members of a committee of directors need be specified
in any written waiver of notice or any waiver by electronic transmission unless
so required by the certificate of incorporation or these bylaws.
ARTICLE
6
Indemnification and
Insurance
6.1 Indemnification.
(a) Each
person who was or is made a party or is threatened to be made a party to or is
involved (including, without limitation, as a witness) in any actual or
threatened action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a “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 or officer of the corporation (or any predecessor), or is or was
serving at the request of the corporation (or any predecessor) as a director,
officer, employee or agent of another corporation or of a partnership, limited
liability company, joint venture, trust, employee benefit plan sponsored or
maintained by the corporation, or other enterprise (or any predecessor of any of
such entities) (hereinafter an “Indemnitee”), shall be indemnified and held
harmless by the corporation to the fullest extent authorized by the General
Corporation Law of the State of Delaware (the “DGCL”), 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), or by other applicable law as then in effect, against all expense,
liability and loss (including attorneys’ fees and related disbursements,
judgments, fines, excise taxes or penalties under the Employee Retirement Income
Security Act of 1974, as amended from time to time, penalties and amounts paid
or to be paid in settlement) actually and reasonably incurred or suffered by
such Indemnitee in connection therewith. Each person who is or was serving as a
director, officer, employee or agent of a subsidiary of the corporation shall be
deemed to be serving, or have served, at the request of the corporation. The
right to indemnification conferred in this Section 6.1 shall be a contract
right.
(b) Any
indemnification (but not advancement of expenses) under this Article 6
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director
or officer is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the DGCL, as the same exists or
hereafter may 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). Such determination shall be made with respect
to a person who is a director or officer at the time of such determination
(A) by a majority vote of the directors who are not or were not parties to
the proceeding in respect of which indemnification is being sought by Indemnitee
(the “Disinterested Directors”), even though less than a quorum, (B) by a
committee of Disinterested Directors designated by a majority vote of the
Disinterested Directors, even though less than a quorum, (C) if there are
no such Disinterested Directors, or if the Disinterested Directors so direct, by
independent legal counsel in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee, or (D) by the stockholders.
6.2 Advance Payment. The
right to indemnification under this Article 6 shall include the right to be
paid by the corporation the expenses incurred in defending any such proceeding
in advance of its final disposition, such advances to be paid by the corporation
within thirty (30) days after the receipt by the corporation of a statement or
statements from the claimant requesting such advance or advances from time to
time; provided,
however, that if the DGCL requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a 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 shall
ultimately be determined that such director or officer is not entitled to be
indemnified under Section 6.1 or otherwise.
Notwithstanding
the foregoing, unless otherwise determined pursuant to this Article 6, 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 the Board by a
majority vote of the Disinterested Directors, even though less than a quorum, or
(B) by a committee of Disinterested Directors designated by majority vote of the
Disinterested Directors, even though less than a quorum, or (C) if there
are no Disinterested Directors or the Disinterested Directors so direct, by
independent legal counsel in a written opinion to the Board, a copy of which
shall be delivered to the claimant, 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.
6.3 Non-Exclusivity and Survival
of Rights; Amendments. The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Article 6 shall not be deemed exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation of the corporation, bylaws,
agreement, vote of stockholders or Disinterested Directors or otherwise, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent of the corporation and shall inure to the benefit of the heirs,
executors and administrators of such a person. Any repeal or modification of the
provisions of this Article 6 shall not in any way diminish or adversely
affect the rights of any director, officer, employee or agent of the
corporation hereunder in respect of any occurrence or matter arising prior to
any such repeal or modification.
6.4 Insurance. The
corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any expense, liability or loss asserted
against such person and incurred by such person in any such capacity, or arising
out of such person’s status as such, whether or not the corporation would have
the power to indemnify such person against such liability under the
DGCL.
6.5 Reliance. Persons who
after the date of the adoption of this provision become or remain directors or
officers of the corporation shall be conclusively presumed to have relied on the
rights to indemnity, advance of expenses and other rights contained in this
Article 6 in entering into or continuing such service. The rights to
indemnification and to the advance of expenses conferred in this Article 6
shall apply to claims made against an Indemnitee arising out of acts or
omissions that occurred or occur both prior and subsequent to the adoption
hereof.
6.6 Severability. If any
word, clause, provision or provisions of this Article 6 shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of this
Article 6 (including, without limitation, each portion of any section or
paragraph of this Article 6 containing any such provision held to be
invalid, illegal or unenforceable, that is not itself held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
and (ii) to the fullest extent possible, the provisions of this
Article 6 (including, without limitation, each such portion of any section
or paragraph of this Article 6 containing any such provision held to be
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or
unenforceable.
ARTICLE
7
Capital
Stock
7.1 Certificates for
Shares. The shares of the corporation shall be represented by
certificates or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the Chairman of the Board, the Chief Executive
Officer, the President or a Vice President and by the Chief Financial Officer,
the Treasurer or an Assistant Treasure, or the Secretary or an Assistant
Secretary of the corporation. Certificates may be issued for partly paid shares
and in such case upon the face or back of the certificates issued to represent
any such partly paid shares, the total amount of the consideration to be paid
therefor, and the amount paid thereon shall be specified.
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 by the DGCL or 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.
7.2 Signatures on
Certificates. Any or all of the signatures on a certificate may be a
facsimile. 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 by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
7.3 Transfer of Stock.
Upon surrender to the corporation or the transfer agent of the corporation of a
certificate of shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, and proper evidence of
compliance or other conditions to rightful transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books. Upon receipt of
proper transfer instructions, and proper evidence of compliance or other
conditions to rightful transfer, from the registered owner of uncertificated
share, such uncertificated shares shall be canceled and issuance of new
equivalent uncertificated shares or certificated shares shall be made to the
person entitled thereto and the transaction shall be recorded upon the books of
the corporation.
7.4 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 to hold liable for calls and
assessments a person registered on its books as the owner of shares, 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.
7.5 Lost, Stolen or Destroyed
Certificates. The corporation may direct that a new certificate or
certificates be issued to replace 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 and on such terms and conditions as the
corporation may require. When authorizing the issue of a new certificate or
certificates, the corporation may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of the lost, stolen or
destroyed certificate or certificates, or his or her legal representative, to
advertise the same in such manner as it shall require, to indemnify the
corporation in such manner as it may require, and/or to give the corporation a
bond or other adequate security in such sum 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.
ARTICLE
8
Certain
Transactions
8.1 Transactions with Interested
Parties. No contract or transaction between the corporation and one or
more of its directors or officers, or between the corporation and any other
corporation, partnership, association or other organization in which one or more
of its directors or officers are directors or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the board or
committee thereof which authorizes the contract or transaction or solely because
the vote or votes of such director or officer are counted for such purpose,
if:
(a) the
material facts as to such director’s or officer’s relationship or interest and
as to the contract or transaction are disclosed or are known to the Board or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum;
or
(b) the
material facts as to such director’s or officer’s relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(c) the
contract or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the Board, a committee thereof or the
stockholders.
8.2 Quorum. Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board or of a committee which authorizes the contract or
transaction.
ARTICLE
9
General
Provisions
9.1 Dividends. Dividends
upon the capital stock of the corporation, subject to any restrictions contained
in the DGCL or the provisions of the certificate of incorporation of the
corporation, if any, may be declared by the Board at any regular or special
meeting or by unanimous written consent. Dividends may be paid in cash, in
property or in shares of capital stock, subject to the provisions of the
certificate of incorporation of the corporation.
9.2 Dividend Reserve.
Before payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the 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 directors
shall think conducive to the interest of the corporation, and the directors may
modify or abolish any such reserve in the manner in which it was
created.
9.3 Checks. All checks or
demands for money and notes of the corporation shall be signed by such officer
or officers or such other person or persons as the Board may from time to time
designate.
9.4 Corporate Seal. The
Board of Directors may, by resolution, adopt a corporate seal. The corporate
seal shall have inscribed thereon the name of the corporation, the year of its
organization and the word “Delaware.” The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or otherwise reproduced. The
seal may be altered from time to time by the Board.
9.5 Execution of Corporate
Contracts and Instruments. The Board, except as otherwise provided in
these bylaws, may authorize any officer or officers, or agent or agents, to
enter into any contract or execute any instrument in the name of and on behalf
of the corporation; such authority may be general or confined to specific
instances. Unless so authorized or ratified by the Board 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.
9.6 Representation of Shares of
Other Corporations. The Chief Executive Officer, the President or any
Vice President, the Chief Financial Officer or the Treasurer or any Assistant
Treasurer, or the Secretary or any Assistant Secretary of the corporation is
authorized to vote, represent and exercise on behalf of the corporation all
rights incident to any and all shares of any corporation or corporations
standing in the name of the corporation. The authority herein granted to said
officers to vote or represent on behalf of the corporation any and all shares
held by the corporation in any other corporation or corporations may be
exercised either by such officers in person or by any other person authorized so
to do by proxy or power of attorney duly executed by said officers.
ARTICLE
10
Amendments
The Board
is expressly empowered to adopt, amend or repeal these bylaws; provided, however, that any
adoption, amendment or repeal of these bylaws by the Board shall require the
approval of at least sixty-six and two-thirds percent of the total number of
directors then in office. The stockholders shall also have power to adopt, amend
or repeal these bylaws at any regular or special meeting of
stockholders; 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 of the corporation, the affirmative vote of the holders of at
least sixty-six and two-thirds percent of the voting power of all of the then
outstanding shares of the stock of the corporation entitled to vote generally in
the election of directors, voting together as a single class, shall be required
for such adoption, amendment or repeal by the stockholders of any provision of
these bylaws and notice of such adoption, amendment or repeal shall be contained
in the notice of such meeting.