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8-K - FORM 8-K - ILLUMINA, INC. | a55919e8vk.htm |
Exhibit 3.2
BYLAWS
OF
ILLUMINA, INC.
Revised as of April 22, 2010
TABLE OF CONTENTS
ARTICLE I CORPORATE OFFICES |
1 | |||
1.1 REGISTERED OFFICE |
1 | |||
1.2 OTHER OFFICES |
1 | |||
ARTICLE II MEETINGS OF STOCKHOLDERS |
1 | |||
2.1 PLACE OF MEETINGS |
1 | |||
2.2 ANNUAL MEETING |
1 | |||
2.3 SPECIAL MEETING |
1 | |||
2.4 NOTICE OF STOCKHOLDERS MEETINGS |
2 | |||
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE |
2 | |||
2.6 QUORUM |
2 | |||
2.7 ADJOURNED MEETING; NOTICE |
2 | |||
2.8 VOTING |
3 | |||
2.9 WAIVER OF NOTICE |
3 | |||
2.10 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING
CONSENTS |
3 | |||
2.11 PROXIES |
4 | |||
2.12 LIST OF STOCKHOLDERS ENTITLED TO VOTE |
4 | |||
2.13 NOMINATIONS FOR DIRECTORS |
5 | |||
2.14 BUSINESS AT MEETINGS OF STOCKHOLDERS |
8 | |||
ARTICLE III DIRECTORS |
10 | |||
3.1 POWERS |
10 | |||
3.2 NUMBER OF DIRECTORS; ELECTION; AND TERM OF OFFICE OF
DIRECTORS |
11 | |||
3.3 QUALIFICATION OF DIRECTORS |
11 | |||
3.4 RESIGNATION AND VACANCIES |
11 | |||
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE |
12 | |||
3.6 FIRST MEETINGS |
13 | |||
3.7 REGULAR MEETINGS |
13 | |||
3.8 SPECIAL MEETINGS; NOTICE |
13 | |||
3.9. QUORUM |
13 | |||
3.10 WAIVER OF NOTICE |
13 | |||
3.11 ADJOURNED MEETING; NOTICE |
14 | |||
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING |
14 | |||
3.13 FEES AND COMPENSATION OF DIRECTORS |
14 | |||
3.14 APPROVAL OF LOANS TO OFFICERS |
14 | |||
3.15 REMOVAL OF DIRECTORS |
14 |
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ARTICLE IV COMMITTEES |
15 | |||
4.1 COMMITTEES OF DIRECTORS |
15 | |||
4.2 COMMITTEE MINUTES |
15 | |||
4.3 MEETINGS AND ACTION OF COMMITTEES |
15 | |||
ARTICLE V OFFICERS |
16 | |||
5.1 OFFICERS |
16 | |||
5.2 ELECTION OF OFFICERS |
16 | |||
5.3 SUBORDINATE OFFICERS |
16 | |||
5.4 REMOVAL AND RESIGNATION OF OFFICERS |
16 | |||
5.5 VACANCIES IN OFFICES |
17 | |||
5.6 CHAIRMAN OF THE BOARD |
17 | |||
5.7 PRESIDENT |
17 | |||
5.8 VICE PRESIDENT |
17 | |||
5.9 SECRETARY |
18 | |||
5.10 TREASURER |
18 | |||
5.11 ASSISTANT SECRETARY |
18 | |||
5.12 ASSISTANT TREASURER |
18 | |||
5.13 AUTHORITY AND DUTIES OF OFFICERS |
19 | |||
ARTICLE VI INDEMNITY |
19 | |||
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS |
19 | |||
6.2 INDEMNIFICATION OF OTHERS |
19 | |||
6.3 INSURANCE |
20 | |||
ARTICLE VII RECORDS AND REPORTS |
20 | |||
7.1 MAINTENANCE AND INSPECTION OF RECORDS |
20 | |||
7.2 INSPECTION BY DIRECTORS |
21 | |||
7.3 ANNUAL STATEMENT TO STOCKHOLDERS |
21 | |||
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS |
21 | |||
ARTICLE VIII GENERAL MATTERS |
21 | |||
8.1 CHECKS |
21 | |||
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS |
21 | |||
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES |
22 | |||
8.4 SPECIAL DESIGNATION ON CERTIFICATES |
22 | |||
8.5 LOST CERTIFICATES |
23 | |||
8.6 CONSTRUCTION; DEFINITIONS |
23 | |||
8.7 DIVIDENDS |
23 |
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8.8 FISCAL YEAR |
23 | |||
8.9 SEAL |
23 | |||
8.10 TRANSFER OF STOCK |
23 | |||
8.11 STOCK TRANSFER AGREEMENTS |
24 | |||
8.12 REGISTERED STOCKHOLDERS |
24 | |||
8.13 SEVERABILITY |
24 | |||
ARTICLE IX AMENDMENTS |
24 | |||
ARTICLE X DISSOLUTION |
25 | |||
ARTICLE XI CUSTODIAN |
25 | |||
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES |
25 | |||
11.2 DUTIES OF CUSTODIAN |
26 |
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BYLAWS
OF
ILLUMINA, INC.
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation shall be 1209 Orange Street, in the City of
Wilmington, County of New Castle, State of Delaware. The name of the registered agent of the
corporation at such location is Corporation Trust Company.
1.2 OTHER OFFICES
The board of directors may at any time establish other offices at any place or places where
the corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place, within or outside the State of
Delaware, designated by the board of directors. In the absence of any such designation,
stockholders meetings shall be held at the registered office of the corporation.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each year on a date and at a time
designated by the board of directors. In the absence of such designation, the annual meeting of
stockholders shall be held on the Second Tuesday of May in each year at 10:00 a.m. However, if
such day falls on a legal holiday, then the meeting shall be held at the same time and place on
the next succeeding full business day. At the meeting, directors shall be elected and any other
proper business may be transacted.
2.3 SPECIAL MEETING
A special meeting of the stockholders may be called, at any time for any purpose or
purposes, by the board of directors.
2.4 NOTICE OF STOCKHOLDERSMEETINGS
All notices of meetings with stockholders shall be in writing and shall be sent or
otherwise given in accordance with Section 2.5 of these bylaws 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. The notice shall specify the place, date, and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is called. Business
transacted at a special meeting of stockholders shall be confined to the purpose or purposes of
the meeting specified in the notice of meeting (or supplement or amendment thereto) given by or
at the direction of the Board of Directors. Stockholders may not make nominations for directors
or bring any business before a special meeting of stockholders.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if mailed, is given when deposited in the
United States mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the corporation. An affidavit of the secretary or an assistant secretary or
of the transfer agent of the corporation that the notice has been given shall, in the absence
of fraud, be prima facie evidence of the facts stated therein.
2.6 QUORUM
The holders of a majority of the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum at all meetings
of the stockholders for the transaction of business except as otherwise provided by statute or
by the certificate of incorporation. If, however, such quorum is not present or represented at
any meeting of the stockholders, then the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is present or
represented. At such adjourned meeting at which a quorum is present or represented, any
business may be transacted that might have been transacted at the meeting as originally
noticed.
2.7 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place, unless these bylaws otherwise
require,notice need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business that 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.
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2.8 VOTING
The stockholders entitled to vote at any meeting of stockholders shall be determined in
accordance with the provisions of Section 2.11 of these bylaws, subject to the provisions of
Sections 217 and 218 of the General Corporation Law of Delaware (relating to voting rights of
fiduciaries, pledgors and joint owners of stock and to voting trusts and other voting agreements).
Except as may be otherwise provided in the certificate of incorporation, each stockholder
shall be entitled to one vote for each share of capital stock held by such stockholder.
2.9 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the General Corporation Law
of Delaware or of the certificate of incorporation or these bylaws, a written waiver thereof,
signed 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 need be specified in any written
waiver of notice unless so required by the certificate of incorporation or these bylaws.
2.10 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
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, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or 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 shall not
be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more
than sixty (60) days prior to any other action.
If the board of directors does not so fix a record date:
3
(a) 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.
(b) The record date for determining stockholders entitled to express consent to corporate
action in writing without a meeting, when no prior action by the board of directors is
necessary, shall be the day on which the first written consent is expressed.
(c) The record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the board of directors adopts the resolution relating
thereto.
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.
2.11 PROXIES
Each stockholder entitled to vote at a meeting of stockholders or to express consent or
dissent to corporate action may authorize another person or persons to act for him by a written
proxy, signed by the stockholder and filed with the secretary of the corporation, but no such
proxy shall be voted or acted upon after three (3) years from its date, unless the proxy
provides for a longer period. A proxy shall be deemed signed if the stockholders name is
placed on the proxy (whether by manual signature, typewriting, telegraphic transmission or
otherwise) by the stockholder or the stockholders attorney-in-fact. The revocability of a
proxy that states on its face that it is irrevocable shall be governed by the provisions of
Section 212(c) of the General Corporation Law of Delaware.
2.12 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of a corporation 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,
during ordinary business hours, for a period of at least ten (10)days prior to the meeting,
either at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The 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 .
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2.13 NOMINATIONS FOR DIRECTORS
Nominations of persons for election to the board of directors of the corporation may be
made only (i) by the board of directors at any meeting of stockholders and (ii) at an annual
meeting of stockholders, by any stockholder of the corporation who is entitled to vote for the
election of directors and who has complied with the procedures established by this Section
2.13. For a nomination to be properly brought before an annual meeting by a stockholder, the
stockholder intending to make the nomination or bring other business before a meeting of
shareholders, as the case may be (the Proponent) must have given timely and proper notice
thereof in writing to the secretary of the corporation, in accordance with, and containing all
information and the completed questionnaire provided for in, this Section 2.13.
To be timely, a Proponents notice must be delivered to or mailed to the secretary of the
corporation and received at the principal executive offices of the corporation not later than
the close of business 90 days prior to the first anniversary of the preceding years annual
meeting of stockholders; provided, however, in the event the date of the annual meeting is
advanced more than 30 days prior to such anniversary date or delayed more than 60 days after
such anniversary date, then to be timely such notice must be received by the corporation not
later than the close of business on the later of the 90th day prior to the date of
the meeting or the 10th day following the date of Public Disclosure (defined below)
of the date of the annual meeting. In no event shall any adjournment or postponement of an
annual meeting of stockholders or announcement thereof commence a new time period or extend any
time period for the giving of a Proponents notice as required by this Section 2.13.
A Proponents notice to the secretary shall set forth: (a) as to each person the Proponent
proposes to nominate for election as a director at the annual meeting, (i) the name, age,
business address, residence address and telephone number of such nominee and the name, business
address and residence address of any Nominee Associated Persons (defined below), (ii) the
principal occupation or employment of such nominee, (iii) the class and number of shares of
stock of the corporation that are owned (beneficially and of record) by or on behalf of such
nominee and by or on behalf of any Nominee Associated Person as of the date of the Proponents
notice, (iv) a description of such nominees qualifications to be a director and (v) a
statement as to whether such nominee would be an independent director, and the basis therefor, under the listing standards of the Nasdaq Global Market and the corporations Corporate
Governance Guidelines and (b) as to the Proponent and any Stockholder Associated Person
(defined below) on whose behalf the nomination is being made, (i) the name and address of the
Proponent, and any holder of record of the Proponents shares of stock, as they appear on the
corporations books, and of any Stockholder Associated Person, (ii) the class and number of
shares of stock of the corporation that are owned (beneficially and of record) by or on behalf
of the Proponent and by or on behalf of any Stockholder Associated Person as of the date of the
Proponents notice, the date such shares were acquired and the investment intent with respect
thereto, (iii) a representation and agreement that the Proponent will notify the corporation in
writing of the class and number of shares of stock of the corporation that are owned
(beneficially and of record) by or on behalf of the
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Proponent and by or on behalf of any Stockholder Associated Person as of the record date for
the meeting, not later than the close of business on the third business day following the later
of the record date or the date of Public Disclosure of the record date, (iv) a description of
all purchases and sales of, or other transactions involving in any way, shares of stock of the
corporation by or on behalf of the Proponent and by or on behalf of any Stockholder Associated
Person during the twenty-four month period prior to the date of the Proponents notice,
including the date of the transactions, the class and number of shares and the consideration
(without regard to whether such shares were or were not owned by the Proponent or any such
person), (v) a description of any agreement, arrangement or understanding, including any
Derivative Instrument (defined below), that has been entered into or is in effect as of the
date of the Proponents notice, by or on behalf of the Proponent, any Stockholder Associated
Person, any nominee or any Nominee Associated Person, the effect or intent of which agreement,
arrangement or understanding is to mitigate loss to, manage risk or benefit of stock price
changes for, or increase or decrease the voting power of, the Proponent, any Stockholder
Associated Person, any nominee or any Nominee Associated Person with respect to the
corporations securities, (vi) a representation and agreement that the Proponent will notify
the corporation in writing of any such agreement, arrangement or understanding, including any
Derivative Instrument, that has been entered into or is in effect as of the record date for the
meeting, not later than the close of business on the third business day following the later of
the record date or the date of Public Disclosure of the record date, (vii) a description of any
other agreement, arrangement or understanding that has been entered into or is in effect as of
the date of the Proponents notice, between or among the Proponent, any Stockholder Associated
Person, any nominee, any Nominee Associated Person or any other person, and that relates to
such nomination or such nominees service as a director of the corporation, (viii) a
representation and agreement that the Proponent will notify the corporation in writing of any
agreement, arrangement or understanding of the type described in clause (vii) above that has
been entered into or is in effect as of the record date for the meeting, not later than the
close of business on the third business day following the later of the record date or the date
of Public Disclosure of the record date, (ix) a representation that the Proponent is the holder
of record or beneficial owner of shares of stock of the corporation entitled to vote for the
election of directors at the annual meeting and intends to appear in person or by proxy at the
meeting to nominate any such nominee and (x) a representation as to whether the Proponent
intends to deliver a proxy statement and/or form of proxy to stockholders and/or otherwise to
solicit proxies from stockholders in support of such nomination.
The Proponents notice shall also include a completed questionnaire (in the form provided
by the secretary of the corporation upon request by the Proponent) signed by such nominee with
respect to information of the type required by the corporations questionnaires for directors
and officers of the corporation in connection with the annual meeting of stockholders and
various reports to the Securities and Exchange Commission. The questionnaire shall also include
a representation and agreement that such nominee (i) is not and will not become a party to (A)
any agreement, arrangement or understanding with, and has not given any commitment or assurance
to, any person or entity as to how
such nominee, if elected as a director of the corporation, will act or vote on any issue
or question (a Voting Commitment) that has not been, or will not be within three business
6
days thereafter, disclosed to the corporation or (B) any Voting Commitment that could limit or
interfere with the nominees ability to comply, if elected as a director of the corporation,
with such nominees fiduciary duties under applicable law, (ii) is not and will not become a
party to any agreement, arrangement or understanding with any person or entity other than the
corporation with respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director of the corporation that has
not been, or will not be within three business days thereafter, disclosed to the corporation
and (iii) in such nominees individual capacity and on behalf of any person or entity on whose
behalf the nomination is being made, would be in compliance, if elected as a director of the
corporation, and will comply, with applicable law and all applicable corporate governance, code
of conduct and ethics, conflict of interest, corporate opportunities, confidentiality and stock
ownership and trading policies and guidelines of the corporation.
No person proposed to be nominated by a stockholder shall be eligible for election as a
director of the corporation unless such person is nominated in accordance with the procedures
set forth in this Section 2.13. If the Proponent intending to nominate a person for election as
a director of the corporation at an annual meeting pursuant to this Section 2.13 does not give
timely and proper notice thereof in writing to the secretary of the corporation, in accordance
with, and containing all information and the completed questionnaire provided for in, this
Section 2.13, or if the Proponent (or a qualified representative of the Proponent) does not
appear at the meeting to nominate such person for election as a director of the corporation,
then, in any such case, such proposed nomination shall not be made, notwithstanding the fact
that proxies in respect of such nomination may have been solicited or obtained. The chairman of
the meeting shall, if the facts warrant, determine that the nomination was not properly made in
accordance with the provisions of this Section 2.13, and, if the chairman should so determine,
he or she shall declare to the meeting that such nomination was not properly made and shall be
disregarded.
The requirements of this Section 2.13 shall apply to the nomination by a stockholder of a
person for election as a director without regard to whether such nomination also is intended to
be included in the corporations proxy statement pursuant to Rule 14a-8 of the Securities
Exchange Act of 1934, as amended (the Exchange Act), or whether such nomination is presented
to stockholders by means of a proxy solicitation by any person other than by or on behalf of
the board of directors.
For purposes of these Bylaws:
Derivative Instrument means any option, warrant, convertible security, stock
appreciation right, swap or similar right with an exercise or conversion privilege or a
settlement payment or mechanism at a price related to any class or series of shares of stock of
the corporation or with a value derived in whole or in part from the value of any class or
series of shares of stock of the corporation, whether or not such instrument or
right shall be subject to settlement in the underlying class or series of shares of stock
of the corporation or otherwise directly or indirectly owned and any other direct or indirect
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opportunity to profit or share in any profit derived from any increase or decrease in the value
of shares of stock of the corporation.
Nominee Associated Person of any nominee for election as a director means (i) any
affiliate or associate (as such terms are defined for purposes of the Exchange Act) of the
nominee and any other person acting in concert with any of the foregoing, (ii) any beneficial
owner of shares of stock of the corporation owned of record or beneficially by such nominee and
(iii) any person controlling, controlled by or under common control with such Nominee
Associated Person.
Public Disclosure means disclosure made in a press release reported by Dow Jones News
Service, Associated Press or a comparable national news service or in a document filed by the
corporation pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Stockholder Associated Person of any stockholder means (i) any affiliate or associate
(as such terms are defined for purposes of the Exchange Act) of the stockholder and any other
person acting in concert with any of the foregoing, (ii) any beneficial owner of shares of
stock of the corporation owned of record or beneficially by such stockholder and (iii) any
person controlling, controlled by or under common control with such Stockholder Associated
Person.
2.14 BUSINESS AT MEETINGS OF STOCKHOLDERS
At any meeting of stockholders, only such business shall be transacted as shall have been
properly brought before the meeting. To be properly brought before a meeting of stockholders,
business must be (a) specified in the notice of meeting (or any supplement or amendment
thereto) given by or at the direction of the board of directors, (b) otherwise properly brought
before the meeting by or at the direction of the board of directors or (c) in the case of an
annual meeting of stockholders, properly brought before the meeting by a stockholder who is
entitled to vote and who has complied with the procedures established by this Section 2.14. For
business to be properly brought before an annual meeting by a stockholder (other than the
nomination of a person for election as a director, which is governed by Section 2.13 of these
Bylaws), the Proponent (defined in Section 2.13) must have given timely and proper notice
thereof in writing to the secretary of the corporation, in accordance with, and containing all
information provided for, in this Section 2.14, and such business must be a proper matter for
stockholder action under the General Corporation Law of Delaware.
To be timely, a Proponents notice must be delivered to or mailed to the secretary of the
corporation and received at the principal executive offices of the corporation not later than
the close of business 90 days prior to the first anniversary of the preceding years annual
meeting of stockholders; provided, however, in the event the date of the annual meeting is
advanced more than 30 days prior to such anniversary date or delayed more than 60 days after
such anniversary date, then to be timely such notice must be received by the corporation not
later than the close of business on the later of the 90th day prior to the date of
the meeting or the 10th day following the date of Public
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Disclosure (defined in Section 2.13) of the date of the annual meeting. In no event shall any
adjournment or postponement of an annual meeting of stockholders or announcement thereof
commence a new time period or extend any time period for the giving of a Proponents notice as
required by this Section 2.14.
A Proponents notice to the secretary shall set forth: (a) as to each matter the Proponent
proposes to bring before the annual meeting, a description of the business desired to be
brought before the annual meeting, the reasons for transacting such business at the meeting and
the text of any resolutions to be proposed, and whether the Proponent has communicated with any
other stockholder or beneficial owner of shares of stock of the corporation regarding such
business and (b) as to the Proponent and any Stockholder Associated Person (defined in Section
2.13) on whose behalf the proposal is being made, (i) the name and address of the Proponent,
and any holder of record of the Proponents shares of stock, as they appear on the
corporations books, and of any Stockholder Associated Person, (ii) the class and number of
shares of stock of the corporation that are owned (beneficially and of record) by or on behalf
of the Proponent and by or on behalf of any Stockholder Associated Person as of the date of the
Proponents notice, the date such shares were acquired and the investment intent with respect
thereto, (iii) a representation and agreement that the Proponent will notify the corporation in
writing of the class and number of shares of stock of the corporation that are owned
(beneficially and of record) by or on behalf of the Proponent and by or on behalf of any
Stockholder Associated Person as of the record date for the meeting, not later than the close
of business on the third business day following the later of the record date or the date of
Public Disclosure of the record date, (iv) a description of all purchases and sales of, or
other transactions involving in any way, shares of stock of the corporation by or on behalf of
the Proponent and by or on behalf of any Stockholder Associated Person during the twenty-four
month period prior to the date of the Proponents notice, including the date of the
transactions, the class and number of shares and the consideration (without regard to whether
such shares involved were or were not owned by the Proponent or any such person), (v) a
description of any agreement, arrangement or understanding, including any Derivative Instrument
(defined in Section 2.13), that has been entered into or is in effect as of the date of the
Proponents notice, by or on behalf of the Proponent or any Stockholder Associated Person, the
effect or intent of which is to mitigate loss to, manage risk or benefit of stock price changes
for, or increase or decrease the voting power of, the Proponent or any Stockholder Associated
Person with respect to the corporations securities, (vi) a representation and agreement that
the Proponent will notify the corporation in writing of any such agreement, arrangement or
understanding, including any Derivative Instrument, that has been entered into or is in effect
as of the record date for the meeting, not later than the close of business on the third
business day following the later of the record date or the date of Public Disclosure of the
record date, (vii) any material interest of the Proponent or any Stockholder Associated Person
in such business, (viii) a description of any other agreement, arrangement or understanding
that has been entered into or is in effect as of the date of the Proponents notice, between or
among the Proponent, any Stockholder Associated Person or any other person, and that relates to
such business, (ix) a representation and agreement that the Proponent will notify the
corporation in writing of any agreement, arrangement or understanding of the type described in
clause (viii) above that has been entered into or is in effect as of the record
9
date for the meeting, not later than the close of business on the third business day following
the later of the record date or the date of Public Disclosure of the record date, (x) a
representation that the Proponent is the holder of record or beneficial owner of shares of
stock of the corporation entitled to vote for the election of directors at the annual meeting
and intends to appear in person or by proxy at the meeting to propose such business and (xi) a
representation as to whether the Proponent intends to deliver a proxy statement and/or form of
proxy to stockholders and/or otherwise to solicit proxies from stockholders in support of such
proposal.
No business proposed by a stockholder shall be transacted at an annual meeting of
stockholders except in accordance with the procedures set forth in this Section 2.14. If the
Proponent intending to propose business at an annual meeting pursuant to this Section 2.14 does
not give timely and proper notice thereof in writing to the secretary of the corporation, in
accordance with, and containing all information provided for in, this Section 2.14, or if the
Proponent (or a qualified representative of the Proponent) does not appear at the meeting to
present the proposed business, then, in any such case, such business shall not be transacted,
notwithstanding the fact that proxies in respect of such business may have been solicited or
obtained. The chairman of the meeting shall, if the facts warrant, determine that the business
was not properly brought before the meeting in accordance with the provisions of this Section
2.14, and, if the chairman should so determine, he or she shall declare to the meeting that
such business was not properly brought before the meeting and shall not be transacted.
The requirements of this Section 2.14 shall apply to any business to be brought before an
annual meeting of stockholders by a stockholder (other than the nomination by a stockholder of
a person for election as a director, which is governed by Section 2.13 of these Bylaws) without
regard to whether such business also is intended to be included in the corporations proxy
statement pursuant to Rule 14a-8 of the Exchange Act or whether such business is presented to
stockholders by means of a proxy solicitation by any person other than by or on behalf of the
board of directors.
ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of the General Corporation Law of Delaware and any limitations
in the certificate of incorporation or these bylaws relating to action required to be approved
by the stockholders or by the outstanding shares, the business and affairs of the corporation
shall be managed and all corporate powers shall be exercised by or under the direction of the
board of directors.
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3.2 NUMBER OF DIRECTORS; ELECTION; AND TERM OF OFFICE OF
DIRECTORS
The board of directors shall consist of such number of directors determined from time to
time by resolution of the board of directors. The number of directors may be changed by
resolution of the board of directors, by an amendment to this bylaw, duly adopted by the board
of directors or by the stockholders, or by a duly adopted amendment to the certificate of
incorporation. Upon the closing of the first sale of the corporations common stock pursuant to
a firmly underwritten registered public offering (the IPO), the directors shall be divided
into three classes, with the term of office of the first class, which class shall initially
consist of two (2) directors, to expire at the first annual meeting of stockholders held after
IPO; the term of office of the second class, which shall initially consist of two (2) directors,
to expire at the second annual meeting of stockholders held after the IPO; the term of office
of the third class, which class shall initially consist of three (3) directors, to expire at the
third annual meeting of stockholders held after the IPO; and thereafter for each such term to
expire at each third succeeding annual meeting of stockholders held after such election.
No reduction of the authorized number of directors shall have the effect of removing any
director before that directors term of office expires.
Each director, including a director elected to fill a vacancy, shall hold office
until his successor is elected and qualified or until his earlier resignation or removal.
3.3 QUALIFICATION OF DIRECTORS
Directors need not be stockholders unless so required by the certificate of incorporation
or these bylaws, wherein other qualifications for directors may be prescribed.
3.4 RESIGNATION AND VACANCIES
Any director may resign at any time upon written notice to the corporation.
Unless otherwise provided in the certificate of incorporation or these bylaws:
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(a) Vacancies and newly created directorships resulting from any increase in the
authorized number of directors elected by all of the stockholders having the right to vote as a
single class may be filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. Such directors or director shall have the authority to
appoint any newly appointed director to serve as a member of a particular class of directors.
(b) Whenever the holders of any class or classes of stock or series thereof are entitled
to elect one or more directors by the provisions of the certificate of incorporation, vacancies
and newly created directorships of such class or classes or series may be filled by a majority
of the directors elected by such class or classes or series thereof then in office, or by a
sole remaining director so elected. Directors appointed to fill a vacancy of such class or
classes or series will be appointed to serve in the same class of directors as the director he
or she is being appointed to replace.
If at any time, by reason of death or resignation or other cause, the corporation should
have no directors in office, then any officer or any stockholder or an executor, administrator,
trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for
the person or estate of a stockholder, may call a special meeting of stockholders in accordance
with the provisions of the certificate of incorporation or these bylaws, or may apply to the
Court of Chancery for a decree summarily ordering an election as provided in Section 211 of the
General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created directorship, the directors
then in office constitute less than a majority of the whole board (as constituted immediately
prior to any such increase), then the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten (10) percent of the total number of the shares
at the time outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office as aforesaid, which election shall be
governed by the provisions of Section 211 of the General Corporation Law of Delaware as far as
applicable.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The board of directors of the corporation may hold meetings, both regular and special,
either within or outside the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or these bylaws, members
of the board of directors, or any committee designated by the board of directors, may
participate in a meeting of the board of directors, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall constitute presence
in person at the meeting.
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3.6 FIRST MEETINGS
The first meeting of each newly elected board of directors shall be held at such time and
place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of
such meeting shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected board of
directors, or in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
3.7 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice at such time and at
such place as shall from time to time be determined by the board.
3.8 SPECIAL MEETINGS; NOTICE
Special meetings of the board may be called by the chairman of the board, or the president
and Chief Executive Officer, on three (3) days notice to each director if provided either by
mail or overnight courier, or on 24 hours notice if provided either personally, by telephone,
or email; special meetings shall be called by the president or secretary in like manner and on
like notice on the written request of two (2) directors unless the board consists of only one
(1) director, in which case special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
3.9 QUORUM
At all meetings of the board of directors, a majority of the authorized number of
directors 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 of directors, except as may be otherwise specifically provided by statute or by the
certificate of incorporation. If a quorum is not present at any meeting of the board of
directors, then the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is present.
3.10 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the General Corporation Law
of Delaware or of the certificate of incorporation or these bylaws, a written waiver thereof,
signed 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
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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 directors, or members of a committee of directors, need be specified in any
written waiver of notice unless so required by the certificate of incorporation or these bylaws.
3.11 ADJOURNED MEETING; NOTICE
If a quorum is not present at any meeting of the board of directors, then the directors
present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present.
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A 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 or committee, as
the case may be, consent thereto in writing and the writing or writings are filed with the
minutes of proceedings of the board or committee.
3.13 FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the certificate of incorporation or these bylaws, the board
of directors shall have the authority to fix the compensation of directors.
3.14 APPROVAL OF LOANS TO OFFICERS
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 subsidiary, including any officer or
employee who is a director of the corporation or its subsidiary, whenever, in the judgment of
the directors, such loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty 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 contained in this
section shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the
corporation at common law or under any statute.
3.15 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the certificate of incorporation or by these
bylaws, any director or the entire board of directors may be removed, with or without cause, by
the holders of a majority of the shares then entitled to vote at an election of directors.
No reduction of the authorized number of directors shall have the effect of removing
any director prior to the expiration of such directors term of office.
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ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution passed by a majority of the whole board,
designate one or more committees, with 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 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. Any such committee, to the extent provided
in the resolution of the board of directors or in the bylaws of the corporation, 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 that may require it; but no such committee shall have the power or
authority to (i) amend the certificate of incorporation (except that a committee may, to the
extent authorized in the resolution or resolutions providing for the issuance of shares of
stock adopted by the board of directors as provided in Section 151(a) of the General
Corporation Law of Delaware, fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the corporation or the
conversion into, or the exchange of such shares for, shares of any other class or classes or
any other series of the same or any other class or classes of stock of the corporation), (ii)
adopt an agreement of merger or consolidation under Sections 251 or 252 of the General
Corporation Law of Delaware, (iii) recommend to the stockholders the sale, lease or exchange of
all or substantially all of the corporations property and assets, (iv) recommend to the
stockholders a dissolution of the corporation or a revocation of a dissolution, or (v) amend
the bylaws of the corporation; and, unless the board resolution establishing the committee, the
bylaws or the certificate of incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend, to authorize the issuance of stock, or to adopt a
certificate of ownership and merger pursuant to Section 253 of the General Corporation Law of
Delaware.
4.2 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report the same to the board
of directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and taken in accordance
with, the provisions of Article III of these bylaws, Section 3.5 (place of meetings and
meetings by telephone), Section 3.7 (regular meetings), Section 3.8
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(special meetings and notice), Section 3.9 (quorum), Section 3.10 (waiver of notice),
Section 3.11 (adjournment and notice of adjournment), and Section 3.12 (action without a meeting),
with such changes in the context of those bylaws as are necessary to substitute the committee
and its members (including its chairman) for the board of directors and its members (including
its chairman); provided, however, that the time of regular meetings of committees may also
be called by resolution of the board of directors and that notice of special meetings of committees
shall also be given to all alternate members, who shall have the right to attend all meetings
of the committee. The board of directors may adopt rules for the government of any committee
not inconsistent with the provisions of these bylaws.
ARTICLE V
OFFICERS
5.1 OFFICERS
The officers of the corporation shall be a president, one or more vice presidents, a
secretary, and a treasurer. The corporation may also have, at the discretion of the board of
directors, a chairman of the board, one or more assistant vice presidents, assistant
secretaries, assistant treasurers, and any such other officers as may be appointed in
accordance with the provisions of Section 5.3 of these bylaws. Any number of offices may be held
by the same person.
5.2 ELECTION OF OFFICERS
The officers of the corporation, except such officers as may be appointed in accordance
with the provisions of Sections 5.3 or 5.5 of these bylaws, shall be chosen by the board of
directors, subject to the rights, if any, of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or empower the president to appoint, such other
officers and agents as the business of the corporation may require, each of whom shall hold
office for such period, have such authority, and perform such duties as are provided in these
bylaws or as the board of directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under any contract of employment, any officer
may be removed, either with or without cause, by an affirmative vote of the majority of the
board of directors at any regular or special meeting of the board or, except in the case of an
officer chosen by the board of directors, by any officer upon whom such power of removal may be
conferred by the board of directors.
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Any officer may resign at any time by giving written notice to the corporation. Any
resignation shall take effect at the date of the receipt of that notice or at any later time
specified in that notice; and, unless otherwise specified in that notice, the acceptance of the
resignation shall not be necessary to make it effective. Any resignation is without prejudice
to the rights, if any, of the corporation under any contract to which the officer is a party.
5.5 VACANCIES IN OFFICES
Any vacancy occurring in any office of the corporation shall be filled by the board
of directors.
5.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, shall, if present, preside at
meetings of the board of directors and exercise and perform such other powers and duties as may
from time to time be assigned to him by the board of directors or as may be prescribed by these
bylaws. If there is no president, then the chairman of the board shall also be the chief
executive officer of the corporation and shall have the powers and duties prescribed in Section
5.7 of these bylaws.
5.7 PRESIDENT
Subject to such supervisory powers, if any, as may be given by the board of directors to
the chairman of the board, if there be such an officer, 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 the officers of
the corporation. He shall preside at all meetings of the stockholders and, in the absence or
nonexistence of a chairman of the board, at all meetings of the board of directors. He shall
have the general powers and duties of management usually vested in the office of president of a
corporation and shall have such other powers and duties as may be prescribed by the board
of directors or these bylaws.
5.8 VICE PRESIDENT
In the absence or disability of the president, the vice presidents, if any, in order of
their rank as fixed by the board of directors or, if not ranked, a vice president designated by
the board of directors, shall perform all the duties of the president and when so acting shall
have all the powers of, and be subject to all the restrictions upon, the president. The vice
presidents shall have such other powers and perform such other duties as from time to time may
be prescribed for them respectively by the board of directors, these bylaws, the president or
the chairman of the board.
5.9 SECRETARY
The secretary shall keep or cause to be kept, at the principal executive office of the
corporation or such other place as the board of directors may direct, a book of minutes of all
meetings and actions of directors, committees of directors, and
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stockholders. The minutes shall show the time and place of each meeting, whether regular or
special (and, if special, how authorized and the notice given), the names of those present at
directors meetings or committee meetings, the number of shares present or represented
at stockholders meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive office of the
corporation or at the office of the corporations transfer agent or registrar, as determined by
resolution of the board of directors, 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 evidencing such shares, and the number and date
of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or
cause to be given, notice of all meetings of the stockholders and of the board of directors
required to be given by law or by these bylaws. He shall keep the seal of the corporation, if
one be adopted, in safe custody and shall have such other powers and perform such other duties
as may be prescribed by the board of directors or by these bylaws.
5.10 TREASURER
The treasurer shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and business transactions
of the corporation, including accounts of its assets, liabilities, receipts, disbursements,
gains, losses, capital, retained earnings, and shares. The books of account shall at all
reasonable times be open to inspection by any director.
The treasurer shall deposit all money and other valuables in the name and to the credit of
the corporation with such depositaries as may be designated by the board of directors. He shall
disburse the funds of the corporation as may be ordered by the board of directors, shall render
to the president and directors, whenever they request it, an account of all of his transactions
as treasurer and of the financial condition of the corporation, and shall have such other
powers and perform such other duties as may be prescribed by the board of directors or these
bylaws.
5.11 ASSISTANT SECRETARY
The assistant secretary, or, if there is more than one, the assistant secretaries in the
order determined by the stockholders or board of directors (or if there be no such
determination, then in the order of their election) shall, 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 the
board of directors or the stockholders may from time to time prescribe.
5.12 ASSISTANT TREASURER
The assistant treasurer, or, if there is more than one, the assistant treasurers, in the
order determined by the stockholders or board of directors (or if there be
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no such determination, then in the order of their election), shall, in the absence of the
treasurer or in the event of his or her inability or refusal to act, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and have such other
powers as the board of directors or the stockholders may from time to time prescribe.
5.13 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing authority and duties, all officers of the corporation shall
respectively have such authority and perform such duties in the management of the business of
the corporation as may be designated from time to time by the board of directors or the
stockholders.
ARTICLE VI
INDEMNITY
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner permitted by the General
Corporation Law of Delaware, indemnify each of its directors and officers against expenses
(including attorneys fees), judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding, arising by reason of the fact that such
person is or was an agent of the corporation. For purposes of this Section 6.1, a director or officer of the corporation includes any person (i) who is or was a director or officer of the
corporation, (ii) who is or was serving at the request of the corporation as a director or
officer of another corporation, partnership, joint venture, trust or other enterprise, or (iii)
who was a director or officer of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the extent and in the manner permitted by the
General Corporation Law of Delaware, to indemnify each of its employees and agents (other than
directors and officers) against expenses (including attorneys fees), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection with any
proceeding, arising by reason of the fact that such person is or was an agent of the
corporation. For purposes of this Section 6.2, an employee or agent of the corporation
(other than a director or officer) includes any person (i) who is or was an employee or agent
of the corporation, (ii) who is or was serving at the request of the corporation as an employee
or agent of another corporation, partnership, joint venture, trust or other enterprise, or
(iii) who was an employee or agent of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor corporation.
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6.3 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 or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as such, whether or
not the corporation would have the power to indemnify him against such liability under the
provisions of the General Corporation Law of Delaware.
ARTICLE VII
RECORDSAND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at such place or places
as designated by the board of directors, keep a record of its stockholders listing their names
and addresses and the number and class of shares held by each stockholder, a copy of these
bylaws as amended to date, accounting books, and other records.
Any stockholder of record, in person or by attorney or other agent, shall, upon written
demand under oath stating the purpose thereof, have the right during the usual hours for
business to inspect for any proper purpose the corporations stock ledger, a list of its
stockholders, and its other books and records and to make copies or extracts there from. A
proper purpose shall mean a purpose reasonably related to such persons interest as a
stockholder. In every instance where an attorney or other agent is the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of attorney or such
other writing that authorizes the attorney or other agent to so act on behalf of the
stockholder. The demand under oath shall be directed to the corporation at its registered office
in Delaware or at its principal place of business.
The officer who has charge of the stock ledger of a corporation 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,
during ordinary business hours, for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
held. The 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.
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7.2 INSPECTION BY DIRECTORS
Any director shall have the right to examine the corporations stock ledger, a list of its
stockholders, and its other books and records for a purpose reasonably related to his position
as a director. The Court of Chancery is hereby vested with the exclusive jurisdiction to
determine whether a director is entitled to the inspection sought. The Court may summarily
order the corporation to permit the director to inspect any and all books and records, the
stock ledger, and the stock list and to make copies or extracts therefrom. The Court may, in
its discretion, prescribe any limitations or conditions with reference to the inspection, or
award such other and further relief as the Court may deem just and proper.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
The board of directors shall present at each annual meeting, and at any special meeting of
the stockholders when called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, the president, any vice president, the treasurer, the secretary
or assistant secretary of this corporation, or any other person authorized by the board of
directors or the president or a vice president, is authorized to vote, represent, and exercise
on behalf of this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The authority granted
herein may be exercised either by such person directly or by any other person authorized to do
so by proxy or power of attorney duly executed by such person having the authority.
ARTICLE VIII
GENERAL MATTERS
8.1 CHECKS
From time to time, the board of directors shall determine by resolution which person or
persons may sign or endorse all checks, drafts, other orders for payment of money, notes or
other evidences of indebtedness that are issued in the name of or payable to the corporation,
and only the persons so authorized shall sign or endorse those instruments.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
The board of directors, 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 of directors or within the
agency power of an officer, no officer, agent or employee shall
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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.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of a corporation shall be represented by certificates, provided that the board
of directors of the corporation may provide by resolution or resolutions that some or all of any
or all classes or series of its stock shall be uncertificated shares. Any such resolution shall
not apply to shares represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the board of directors, every
holder of stock represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the corporation by
the chairman or vice-chairman of the board of directors, or the president or vice-president,
and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of
such corporation representing the number of shares registered in certificate form. Any or all
of the signatures on the 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 has
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.
The corporation may issue the whole or any part of its
shares as partly paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent any such partly
paid shares, upon the books and records of the corporation in the case of uncertificated partly
paid shares, the total amount of the consideration to be paid therefor and the amount paid
thereon shall be stated. Upon the declaration of any dividend on fully paid shares, the
corporation shall declare a dividend upon partly paid shares of the same class, but only upon
the basis of the percentage of the consideration actually paid thereon.
8.4 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class of stock or more than one
series of any class, then the powers, the designations, the preferences, and the 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 shall be set
forth in full or summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that, except as otherwise
provided in Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements there may be set forth on the face or back of the certificate that the corporation
shall issue to represent such class or series of stock a statement that the corporation will
furnish without charge to each stockholder who so requests the powers, the designations, the
preferences, and the 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.
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8.5 LOST CERTIFICATES
Except as provided in this Section 8.5, no new certificates for shares shall be issued to
replace a previously issued certificate unless the latter is surrendered to the corporation and
cancelled at the same time. The corporation may issue a new certificate of stock or
uncertificated shares in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen
or destroyed certificate, or his legal representative, to give the corporation a bond
sufficient to indemnify it against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of such new
certificate or uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of construction, and
definitions in the Delaware General Corporation Law shall govern the construction of these
bylaws. Without limiting the generality of this provision, the singular number includes the
plural, the plural number includes the singular, and the term person includes both a
corporation and a natural person.
8.7 DIVIDENDS
The directors of the corporation, subject to any restrictions contained in the certificate
of incorporation, may declare and pay dividends upon the shares of its capital stock pursuant
to the General Corporation Law of Delaware. Dividends may be paid in cash, in property, or in
shares of the corporations capital stock.
The directors of the corporation may set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper purpose and may abolish any such
reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or
maintaining any property of the corporation, and meeting contingencies.
8.8 FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the board of directors
and may be changed by the board of directors.
8.9 SEAL
The seal of the corporation shall be such as from time to time may be approved by the board
of directors.
8.10 TRANSFER OF STOCK
Upon surrender to the corporation or the transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of succession,
assignation or authority to transfer, it shall be the duty of the corporation to
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issue a new certificate to the person entitled thereto, cancel the old certificate, and record
the transaction in its books.
8.11 STOCK TRANSFER AGREEMENTS
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 General Corporation Law of Delaware.
8.12 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, shall be
entitled to hold liable for calls and assessments the 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 another person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of Delaware .
8.13 SEVERABILITY
If any provision of these bylaws (or any portion, including words or
phrases, thereof) or the application of any provision (or any portion, including words or
phrases, thereof) to any person or circumstance shall be held invalid, illegal or unenforceable
in any respect under applicable law by a court of competent jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provisions hereof (or the remaining
portion thereof) or the application of such provision to any other persons or circumstances,
which unaffected provisions (or portions thereof) shall remain valid, legal and enforceable to
the fullest extent permitted by law.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be adopted, amended or repealed by the
stockholders entitled to vote; provided, however, that the corporation may, in its certificate
of in corporation, confer the power to adopt, amendor repeal bylaws upon the directors. The fact
that such power has been so conferred upon the directors shall not divest the stockholders of
the power, nor limit their power to adopt, amend or repeal bylaws.
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ARTICLE X
DISSOLUTION
If it should be deemed advisable in the judgment of the board of directors of the
corporation that the corporation should be dissolved, the board, after the adoption of a
resolution to that effect by a majority of the whole board at any meeting called for that
purpose, shall cause notice to be mailed to each stockholder entitled to vote there on of the
adoption of the resolution and of a meeting of stockholders to take action upon the resolution.
At the meeting a vote shall be taken for and against the proposed dissolution. If a
majority of the outstanding stock of the corporation entitled to vote thereon votes for the
proposed dissolution, then a certificate stating that the dissolution has been authorized in
accordance with the provisions of Section 275 of the General Corporation Law of Delaware and
setting forth the names and residences of the directors and officers shall be executed,
acknowledged, and filed and shall become effective in accordance with Section 103 of the
General Corporation Law of Delaware. Upon such certificates becoming effective in accordance
with Section 103 of the General Corporation Law of Delaware, the corporation shall be dissolved.
Whenever all the stockholders entitled to vote on a dissolution consent in writing, either
in person or by duly authorized attorney, to a dissolution, no meeting of directors or
stockholders shall be necessary. The consent shall be filed and shall become effective in
accordance with Section 103 of the General Corporation Law of Delaware. Upon such consents
becoming effective in accordance with Section 103 of the General Corporation Law of Delaware,
the corporation shall be dissolved. If the consent is signed by an attorney, then the original
power of attorney or a photocopy thereof shall be attached to and filed with the consent. The
consent filed with the Secretary of State shall have attached to it the affidavit of the
secretary or some other officer of the corporation stating that the consent has been signed by
or on behalf of all the stockholders entitled to vote on a dissolution; in addition, there
shall be attached to the consent a certification by the secretary or some other officer of the
corporation setting forth the names and residences of the directors and officers of the
corporation.
ARTICLE XI
CUSTODIAN
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES
The Court of Chancery, upon application of any stockholder, may appoint one or more
persons to be custodians and, if the corporation is insolvent, to be receivers, of and for the
corporation when:
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(a) at any meeting held for the election of directors the stockholders are so divided that
they have failed to elect successors to directors whose terms have expired or would have expired upon qualification of their successors; or
(b) the business of the corporation is suffering
or is threatened with irreparable injury because the directors are so divided respecting the
management of the affairs of the corporation that the required vote for action by the board of
directors cannot be obtained and the stockholders are unable to terminate this division; or
(c) the corporation has abandoned its business and has failed within a reasonable time to take
steps to dissolve, liquidate or distribute its assets.
11.2 DUTIES OF CUSTODIAN
The custodian shall have all the powers and title of a receiver appointed under Section
291 of the General Corporation Law of Delaware, but the authority of the custodian shall be to
continue the business of the corporation and not to liquidate its affairs and distribute its
assets, except when the Court of Chancery otherwise orders and except in cases arising under
Sections 226(a)(3) or 352(a)(2) of the General Corporation Law of Delaware.
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