Attached files
Exhibit 3.4
AMENDED
AND RESTATED
BYLAWS
OF ENDRA LIFE SCIENCES INC.
ARTICLE I
Section
1.1. Annual Meetings. If
required by applicable law, an annual meeting of stockholders shall
be held for the election of directors at such date, time and place,
if any, either within or without the State of Delaware, as may be
designated by resolution of the board of directors (the
“Board of Directors”) of ENDRA Life Sciences Inc. (the
“Corporation”) from time to time. Any other proper
business may be transacted at the annual meeting.
Section
1.2. Special
Meetings.
(A) Special
meetings of stockholders for any purpose or purposes, unless
otherwise prescribed by statute or by the Corporation’s
certificate of incorporation, as amended, restated, supplemented or
otherwise modified (the “Certificate of
Incorporation”), (1) may be called at any time by the order
of a majority of the Whole Board, the Chairman of the Board, the
Chief Executive Officer or the President (in the absence of a chief
executive officer), and (2) shall be called by the Secretary upon
the written request of the holders of record of at least twenty
percent (20%) of the outstanding shares of common stock of the
Corporation (the “Requisite Percentage”), subject to
and in compliance with Article SEVENTH of the Certificate of
Incorporation, or any successor provision thereto, and these
Bylaws. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice. For purposes
of these bylaws, the term “Whole Board” shall mean the
total number of authorized directors whether or not there exist any
vacancies in previously authorized directorships.
(B) Any
request by stockholders to call a special meeting in accordance
with Section 1.2(A)(2) of these Bylaws shall (1) be delivered to,
or mailed to and received by, the Secretary of the Corporation at
the Corporation’s principal executive offices, (2) be signed
by each stockholder, or a duly authorized agent of such
stockholder, requesting the special meeting, (3) set forth the
purpose or purposes of the meeting, and (3) include all of the
information required by Section 1.13(A)(2) as to any nominations
proposed to be presented and any other business proposed to be
conducted at such special meeting and as to the stockholder(s)
proposing such business or nominations, and a representation by the
stockholder(s) proposing such business that within five business
days after the record date for any such special meeting it will
provide such information as of the record date for such special
meeting. A special meeting requested by stockholders shall be held
at such date, time and place within or without the State of
Delaware as may be fixed by the Board of Directors; provided,
however, that the date of any such special meeting shall not be
more than ninety (90) days after the request to call the special
meeting is received by the Corporate Secretary.
(C) Notwithstanding
the foregoing, a special meeting requested by stockholders in
accordance with Section 1.2(A)(2) of these Bylaws shall not be held
if: (1) the stated business to be brought before the special
meeting is not a proper subject for stockholder action under
applicable law, (2) the Board of Directors has called or calls for
an annual or special meeting of stockholders to be held within
ninety days after the request for the special meeting is delivered
to or received by the Secretary and the Board of Directors
determines in good faith that the business of such annual or
special meeting includes (among any other matters properly brought
before the annual or special meeting) the purpose specified in the
request, (3) an annual or special meeting was held not more than 12
months before the request to call the special meeting was received
by the Corporation which included the purpose specified in the
request, and (4) the special meeting requested by stockholders
involves or was made in a manner that involved a violation of or
does or did not comply with the Certificate of Incorporation, these
Bylaws, Regulation 14A under the Exchange Act (as hereinafter
defined) or other applicable law.
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(D) A
stockholder may revoke a request for a special meeting at any time
by written revocation delivered to, or mailed to and received by,
the Secretary. If, at any time after receipt by the Secretary of
the Corporation of a proper request for a special meeting of
stockholders, there are no longer valid requests from stockholders
holding in the aggregate at least the Requisite Percentage, whether
because of revoked requests or otherwise, the Board of Directors,
in its discretion, may cancel the special meeting (or, if the
special meeting has not yet been called, may direct the Chairman of
the Board or the Secretary of the Corporation not to call such a
meeting).
Section
1.3. Notice of Meetings.
Whenever stockholders are required or permitted to take any action
at a meeting, a notice of the meeting shall be given that shall
state the place, if any, date and hour 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, the record date for determining the stockholders entitled
to vote at the meeting (if such date is different from the record
date for stockholders entitled to notice of the meeting) and, in
the case of a special meeting, the purpose or purposes for which
the meeting is called. Unless otherwise provided by law, the
Certificate of Incorporation or these bylaws, the notice of any
meeting shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting to each stockholder
entitled to vote at the meeting as of the record date for
determining the stockholders entitled to notice of the meeting. If
mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the
stockholder at such stockholder’s address as it appears on
the records of the Corporation.
Section
1.4. Adjournments. Any
meeting of stockholders, annual or special, may adjourn from time
to time to reconvene at the same or some other place, and notice
need not be given of any such 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 which might have been transacted at the original meeting.
If the adjournment is for more than thirty (30) days, a notice of
the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. If after the adjournment a new
record date for determination of stockholders entitled to vote is
fixed for the adjourned meeting, the Board of Directors shall fix
as the record date for determining stockholders entitled to notice
of such adjourned meeting the same or an earlier date as that fixed
for determination of stockholders entitled to vote at the adjourned
meeting, and shall give notice of the adjourned meeting to each
stockholder of record as of the record date so fixed for notice of
such adjourned meeting.
Section
1.5. Quorum. Except as
otherwise provided by law, the Certificate of Incorporation or
these bylaws, at each meeting of stockholders the presence in
person or by proxy of the holders of not less than one-third in
voting power of the outstanding shares of stock entitled to vote at
the meeting shall be necessary and sufficient to constitute a
quorum. In the absence of a quorum, then either (i) the chairperson
of the meeting or (ii) a majority in voting power of the
stockholders so present (in person or by proxy) and entitled to
vote may adjourn the meeting from time to time in the manner
provided in Section 1.4 of these bylaws until a quorum shall
attend. Shares of its own stock belonging to the Corporation or to
another corporation, if a majority of the shares entitled to vote
in the election of directors of such other corporation is held,
directly or indirectly, by the Corporation, shall neither be
entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the
Corporation or any subsidiary of the Corporation to vote stock,
including but not limited to its own stock, held by it in a
fiduciary capacity.
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Section
1.6. Organization. Meetings
of stockholders shall be presided over by the Chairman of the Board
of Directors or, in his or her absence, by the Chief Executive
Officer or, in his or her absence, by the President or, in his or
her absence, by a Vice President or, in the absence of the
foregoing persons, by a chairman designated by the Board of
Directors or, in the absence of such designation, by a chairman
chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section
1.7. Voting; Proxies.
Except as otherwise provided by or pursuant to the provisions of
the Certificate of Incorporation, each stockholder entitled to vote
at any meeting of stockholders shall be entitled to one vote for
each share of stock held by such stockholder which has voting power
upon the matter in question. Each stockholder entitled to vote at a
meeting of stockholders 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. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is
coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by
delivering to the Secretary of the Corporation a revocation of the
proxy or a new proxy bearing a later date. Voting at meetings of
stockholders need not be by written ballot. At all meetings of
stockholders for the election of directors at which a quorum is
present a plurality of the votes cast shall be sufficient to elect.
All other elections and questions presented to the stockholders at
a meeting at which a quorum is present shall, unless otherwise
provided by the Certificate of Incorporation, these bylaws, the
rules or regulations of any stock exchange applicable to the
Corporation, or applicable law or pursuant to any regulation
applicable to the Corporation or its securities, be decided by the
affirmative vote of the holders of a majority in voting power of
the shares of stock of the Corporation which are present in person
or by proxy and entitled to vote thereon.
Section
1.8. Fixing Date for Determination
of Stockholders of Record.
(A) In order
that the Corporation may determine the stockholders entitled to
notice of any meeting of stockholders or any adjournment thereof,
the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record
date shall, unless otherwise required by law, not be more than
sixty (60) nor less than ten (10) days before the date of such
meeting. If the Board of Directors so fixes a date, such date shall
also be the record date for determining the stockholders entitled
to vote at such meeting unless the Board of Directors determines,
at the time it fixes such record date, that a later date on or
before the date of the meeting shall be the date for making such
determination. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix
a new record date for determination of stockholders entitled to
vote at the adjourned meeting, and in such case shall also fix as
the record date for stockholders entitled to notice of such
adjourned meeting the same or an earlier date as that fixed for
determination of stockholders entitled to vote in accordance
herewith at the adjourned meeting.
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(B) In order
that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment
of any rights, or 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 a record date,
which shall not be more than sixty (60) days prior to such other
action. If no such record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close
of business on the day on which the Board of Directors adopts the
resolution relating thereto.
Section
1.9. List of Stockholders Entitled
to Vote. The officer who has charge of the stock ledger
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 (provided, however, if the record date for
determining the stockholders entitled to vote is less than ten (10)
days before the date of the meeting, the list shall reflect the
stockholders entitled to vote as of the tenth day before the
meeting date), 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 at least ten (10) 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 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 a list of stockholders entitled to vote
at the meeting shall be produced and kept at the time and place of
the meeting during the whole time thereof and may be examined 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 access such list shall be provided with the
notice of the meeting. Except as otherwise provided by law, the
stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the list of stockholders required
by this Section 1.9 or to vote in person or by proxy at any meeting
of stockholders.
Section
1.10. Action by Written or
Electronic Consent of Stockholders. Any action which is
required to be or may be taken at any annual or special meeting of
stockholders of the Corporation may be taken without a meeting,
without prior notice to stockholders and without a vote if consents
in writing or by electronic communication, setting forth the action
so taken, shall have been signed by the holders of outstanding
stock having not less than the minimum number of votes that would
be necessary to authorize or to take such action at a meeting at
which all shares entitled to vote thereon were present and
voted.
Section
1.11. Inspectors of
Election. The Corporation shall, in advance of any meeting
of stockholders, appoint one or more inspectors of election, who
may be employees of the Corporation, to act at the meeting or any
adjournment thereof and to make a written report thereof. The
Corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. In the event
that no inspector so appointed or designated 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 to execute faithfully the duties of
inspector with strict impartiality and according to the best of his
or her ability. The inspector or inspectors so appointed or
designated shall (i) ascertain the number of shares of capital
stock of the Corporation outstanding and the voting power of each
such share, (ii) determine the shares of capital stock of the
Corporation represented at the meeting and the validity of proxies
and ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v)
certify their determination of the number of shares of capital
stock of the Corporation represented at the meeting and such
inspectors' count of all votes and ballots. Such certification and
report shall specify such other information as may be required by
law. In determining the validity and counting of proxies and
ballots cast at any meeting of stockholders of the Corporation, the
inspectors may consider such information as is permitted by
applicable law. No person who is a candidate for an office at an
election may serve as an inspector at such election.
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Section
1.12. Conduct of Meetings.
The date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting
shall be announced at the meeting by the person presiding over the
meeting. The Board of Directors may adopt by resolution such rules
and regulations for the conduct of the meeting of stockholders as
it shall deem appropriate. Except to the extent inconsistent with
such rules and regulations as adopted by the Board of Directors,
the person presiding over any meeting of stockholders shall have
the right and authority to convene and (for any or no reason) to
adjourn the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such
presiding person, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by
the Board of Directors or prescribed by the presiding person of the
meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting;
(ii) rules and procedures for maintaining order at the meeting and
the safety of those present; (iii) limitations on attendance at or
participation in the meeting to stockholders entitled to vote at
the meeting, their duly authorized and constituted proxies or such
other persons as the presiding person of the meeting shall
determine; (iv) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. The presiding
person at any meeting of stockholders, in addition to making any
other determinations that may be appropriate to the conduct of the
meeting, shall, if the facts warrant, determine and declare to the
meeting that a matter or business was not properly brought before
the meeting and if such presiding person should so determine, such
presiding person shall so declare to the meeting and any such
matter or business not properly brought before the meeting shall
not be transacted or considered. Unless and to the extent
determined by the Board of Directors or the person presiding over
the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary
procedure.
Section
1.13. Notice of Stockholder
Business and Nominations.
(A)
Annual Meetings of
Stockholders. (1) Nominations of persons for election to the
Board of Directors of the Corporation and the proposal of other
business to be considered by the stockholders may be made at an
annual meeting of stockholders only (a) pursuant to the
Corporation’s notice of meeting (or any supplement thereto),
(b) by or at the direction of the Board of Directors or any
committee thereof or (c) by any stockholder of the Corporation who
was a stockholder of record of the Corporation at the time the
notice provided for in this Section 1.13 is delivered to the
Secretary of the Corporation, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in
this Section 1.13.
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(2) For any
nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this Section 1.13, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation and
any such proposed business (other than the nominations of persons
for election to the Board of Directors) must constitute a proper
matter for stockholder action. To be timely, a stockholder's notice
shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on
the ninetieth (90th) day, nor earlier
than the close of business on the one hundred twentieth
(120th)
day, prior to the first anniversary of the preceding year's annual
meeting (provided, however, that in the event that no annual
meeting was held in the previous year or if the date of the annual
meeting is more than thirty (30) days before or more than seventy
(70) days after such anniversary date, notice by the stockholder
must be so delivered not earlier than the close of business on the
one hundred twentieth (120th) day prior to such
annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such
annual meeting or the tenth (10th) day following the
day on which public announcement of the date of such meeting is
first made by the Corporation). In no event shall the public
announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth: (a) as to each person whom
the stockholder proposes to nominate for election as a director (i)
all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in
an election contest, or is otherwise required, in each case
pursuant to and in accordance with Section 14(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations promulgated thereunder, and (ii) such
person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected; (b) as to any
other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought
before the meeting, the 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 the bylaws of
the Corporation, the language of the proposed amendment), the
reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and
(c) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation’s books, and of such beneficial owner, (ii) the
class or series and number of shares of capital stock of the
Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, (iii) a description of any
agreement, arrangement or understanding with respect to the
nomination or proposal between or among such stockholder and/or
such beneficial owner, any of their respective affiliates or
associates, and any others acting in concert with any of the
foregoing, including, in the case of a nomination, the nominee,
(iv) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests,
options, warrants, convertible securities, stock appreciation or
similar rights, hedging transactions, and borrowed or loaned
shares) that has been entered into as of the date of the
stockholder's notice by, or on behalf of, such stockholder and such
beneficial owners, whether or not such instrument or right shall be
subject to settlement in underlying shares of capital stock of the
Corporation, the effect or intent of which is to mitigate loss to,
manage risk or benefit of share price changes for, or increase or
decrease the voting power of, such stockholder or such beneficial
owner, with respect to securities of the Corporation, (v) a
representation that the stockholder is a holder of record of stock
of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to propose such
business or nomination, (vi) a representation whether the
stockholder or the beneficial owner, if any, intends or is part of
a group which intends (a) to deliver a proxy statement and/or form
of proxy to holders of at least the percentage of the
Corporation’s outstanding capital stock required to approve
or adopt the proposal or elect the nominee and/or (b) otherwise to
solicit proxies or votes from stockholders in support of such
proposal or nomination, and (vii) any other information relating to
such stockholder and beneficial owner, if any, required to be
disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for, as applicable, the
proposal and/or for the election of directors in an election
contest pursuant to and in accordance with Section 14(a) of the
Exchange Act and the rules and regulations promulgated thereunder.
The foregoing notice requirements of this Section 1.13 shall be
deemed satisfied by a stockholder with respect to business other
than a nomination if the stockholder has notified the Corporation
of his, her or its intention to present a proposal at an annual
meeting in compliance with applicable rules and regulations
promulgated under the Exchange Act and such stockholder's proposal
has been included in a proxy statement that has been prepared by
the Corporation to solicit proxies for such annual meeting. The
Corporation may require any proposed nominee to furnish such other
information as the Corporation may reasonably require to determine
the eligibility of such proposed nominee to serve as a director of
the Corporation.
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(3) Notwithstanding
anything in the second sentence of paragraph (A)(2) of this Section
1.13 to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation at the
annual meeting is increased effective after the time period for
which nominations would otherwise be due under paragraph (A)(2) of
this Section 1.13 and there is no public announcement by the
Corporation naming the nominees for the additional directorships at
least one hundred (100) days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by
this Section 1.13 shall also be considered timely, but only with
respect to nominees for the additional directorships, if it shall
be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the tenth
(10th) day
following the day on which such public announcement is first made
by the Corporation.
(B)
Special Meetings of
Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation’s notice of meeting.
Nominations of persons for election to the Board of Directors may
be made at a special meeting of stockholders at which directors are
to be elected pursuant to the Corporation’s notice of meeting
(1) by or at the direction of the Board of Directors or any
committee thereof or (2) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at
the time the notice provided for in this Section 1.13 is delivered
to the Secretary of the Corporation, who is entitled to vote at the
meeting and upon such election and who complies with the notice
procedures set forth in this Section 1.13. In the event the
Corporation calls a special meeting of stockholders for the purpose
of electing one or more directors to the Board of Directors, any
such stockholder entitled to vote in such election of directors may
nominate a person or persons (as the case may be) for election to
such position(s) as specified in the Corporation’s notice of
meeting, if the stockholder's notice required by paragraph (A)(2)
of this Section 1.13 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the
close of business on the one hundred twentieth (120th) day prior to such
special meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such
special meeting or the tenth (10th) day following the
day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the
public announcement of an adjournment or postponement of a special
meeting commence a new time period (or extend any time period) for
the giving of a stockholder's notice as described
above.
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(C)
General. (1) Except as
otherwise expressly provided in any applicable rule or regulation
promulgated under the Exchange Act, only such persons who are
nominated in accordance with the procedures set forth in this
Section 1.13 shall be eligible to be elected at an annual or
special meeting of stockholders of the Corporation to serve as
directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 1.13.
Except as otherwise provided by law, the chairman of the meeting
shall have the power and duty (a) to determine whether a nomination
or any business proposed to be brought before the meeting was made
or proposed, as the case may be, in accordance with the procedures
set forth in this Section 1.13 (including whether the stockholder
or beneficial owner, if any, on whose behalf the nomination or
proposal is made solicited (or is part of a group which solicited)
or did not so solicit, as the case may be, proxies or votes in
support of such stockholder's nominee or proposal in compliance
with such stockholder's representation as required by clause
(A)(2)(c)(vi) of this Section 1.13) and (b) if any proposed
nomination or business was not made or proposed in compliance with
this Section 1.13, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 1.13,
unless otherwise required by law, if the stockholder (or a
qualified representative of the stockholder) does not appear at the
annual or special meeting of stockholders of the Corporation to
present a nomination or proposed business, such nomination shall be
disregarded and such proposed business shall not be transacted,
notwithstanding that proxies in respect of such vote may have been
received by the Corporation. For purposes of this Section 1.13, to
be considered a qualified representative of the stockholder, a
person must be a duly authorized officer, manager or partner of
such stockholder or must be authorized by a writing executed by
such stockholder or an electronic transmission delivered by such
stockholder to act for such stockholder as proxy at the meeting of
stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing
or electronic transmission, at the meeting of
stockholders.
(2) For
purposes of this Section 1.13, "public announcement" shall include
disclosure in a press release reported by the Dow Jones News
Service, Associated Press or other national news service or in a
document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act and the rules and regulations promulgated
thereunder.
(3) Notwithstanding
the foregoing provisions of this Section 1.13, a stockholder shall
also comply with all applicable requirements of the Exchange Act
and the rules and regulations promulgated thereunder with respect
to the matters set forth in this Section 1.13; provided however,
that any references in these bylaws to the Exchange Act or the
rules and regulations promulgated thereunder are not intended to
and shall not limit any requirements applicable to nominations or
proposals as to any other business to be considered pursuant to
this Section 1.13 (including paragraphs (A)(1)(c) and (B) hereof),
and compliance with paragraphs (A)(1)(c) and (B) of this Section
1.13 shall be the exclusive means for a stockholder to make
nominations or submit other business (other than, as provided in
the penultimate sentence of (A)(2), business other than nominations
brought properly under and in compliance with Rule 14a-8 of the
Exchange Act, as may be amended from time to time). Nothing in this
Section 1.13 shall be deemed to affect any rights (a) of
stockholders to request inclusion of proposals or nominations in
the Corporation’s proxy statement pursuant to applicable
rules and regulations promulgated under the Exchange Act or (b) of
the holders of any series of Preferred Stock to elect directors
pursuant to any applicable provisions of the Certificate of
Incorporation.
8
ARTICLE II
Board of Directors
Section
2.1. Number;
Qualifications. Subject to the Certificate of Incorporation,
the Board of Directors shall consist of one or more members, the
number thereof to be determined from time to time by resolution of
the Whole Board. Directors need not be stockholders.
Section
2.2. Election; Resignation;
Vacancies. The Board of Directors shall initially consist of
the persons named as directors in the Certificate of Incorporation
or elected by the incorporator of the Corporation, and each
director so elected shall hold office until the first annual
meeting of stockholders or until his or her successor is duly
elected and qualified. At the first annual meeting of stockholders
and at each annual meeting thereafter, the stockholders shall elect
directors each of whom shall hold office for a term of one year or
until his or her successor is duly elected and qualified, subject
to such director's earlier death, resignation, disqualification or
removal. Any director may resign at any time upon notice given in
writing or by electronic transmission to the Corporation. Such
resignation shall take effect when such notice is given unless the
notice specifies (a) a later effective date, or (b) an
effective date determined upon the happening of an event or events,
such as the failure to receive the required vote for reelection as
a director and the acceptance of such resignation by the Board of
Directors. Unless otherwise specified in the notice of resignation,
the acceptance of such resignation shall not be necessary to make
it effective. Unless otherwise provided by law or the Certificate
of Incorporation, any newly created directorship or any vacancy
occurring in the Board of Directors for any cause may be filled
only by a majority of the remaining members of the Board of
Directors, although such majority is less than a quorum, and each
director so elected shall hold office until the expiration of the
term of office of the director whom he or she has replaced or until
his or her successor is elected and qualified.
Section
2.3. Regular Meetings.
Regular meetings of the Board of Directors may be held at such
places within or without the State of Delaware and at such times as
the Board of Directors may from time to time
determine.
Section
2.4. Special Meetings.
Special meetings of the Board of Directors may be held at any time
or place within or without the State of Delaware whenever called by
the Chief Executive Officer, the Secretary, or by any two members
of the Board of Directors. Notice of a special meeting of the Board
of Directors shall be given by the person or persons calling the
meeting at least twenty-four hours before the special
meeting.
Section
2.5. Telephonic Meetings
Permitted. Members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in
a meeting thereof by means of conference telephone or other
communications equipment by means of which all persons
participating in the meeting can hear each other, and participation
in a meeting pursuant to this by-law shall constitute presence in
person at such meeting.
Section
2.6. Quorum; Vote Required for
Action. At all meetings of the Board of Directors the
directors entitled to cast a majority of the votes of the whole
Board of Directors shall constitute a quorum for the transaction of
business. Except in cases in which the Certificate of
Incorporation, these bylaws or applicable law otherwise provides, a
majority of the votes entitled to be cast by the directors present
at a meeting at which a quorum is present shall be the act of the
Board of Directors.
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Section
2.7. Organization. Meetings
of the Board of Directors shall be presided over by the Chairman of
the Board of Directors or, in his or her absence, by a chairman
chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section
2.8. Action by Unanimous Consent
of Directors. Unless otherwise restricted by the Certificate
of Incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of
the Board of Directors or such committee, as the case may be,
consent thereto in writing or by electronic transmission and the
writing or writings or electronic transmissions are filed with the
minutes of proceedings of the board or committee in accordance with
applicable law.
Section
2.9. Chairman of the Board and
Vice-Chairman of the Board. The Board of Directors may elect
one or more of its members to serve as Chairman or Vice-Chairman of
the Board and may fill any vacancy in such position at such time
and in such manner as the Board of Directors shall determine. The
Chairman of the Board, if any, shall preside at all meetings of the
Board of Directors at which he or she is present and shall perform
such duties and possess such powers as are designated by the Board
of Directors. If the Board of Directors appoints a Vice-Chairman of
the Board, he or she shall, in the absence or disability of the
Chairman of the Board, perform the duties and exercise the powers
of the Chairman of the Board and shall perform such other duties
and possess such other powers as may from time to time be
designated by the Board of Directors. The fact that a person serves
as either Chairman of Vice-Chairman of the Board shall not make
such person considered an Officer of the Corporation.
ARTICLE III
Committees
Section
3.1. Committees. The Board
of Directors may designate one or more committees, each committee
to consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence
or disqualification of a member of the committee, the member or
members thereof present at any meeting and not disqualified from
voting, whether or not he, she or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act
at the meeting in place of any such absent or disqualified member.
Any such committee, to the extent permitted by law and to the
extent provided in the resolution of the Board of Directors, shall
have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it.
Section
3.2. Committee Rules.
Unless the Board of Directors otherwise provides, each committee
designated by the Board of Directors may make, alter and repeal
rules for the conduct of its business. In the absence of such rules
each committee shall conduct its business in the same manner as the
Board of Directors conducts its business pursuant to Article II of
these bylaws.
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ARTICLE IV
Officers
Section 4.1
Officers. The officers of
the Corporation shall consist of a Chief Executive Officer, a Chief
Financial Officer, a President, one or more Vice Presidents, a
Secretary, a Treasurer and such other officers as the Board of
Directors may from time to time determine, which may include,
without limitation, one or more Vice Presidents, Assistant
Secretaries or Assistant Treasurers. Each of the
Corporation’s officers shall be elected by the Board of
Directors, each to have such authority, functions or duties as set
forth in these bylaws or as determined by the Board of Directors.
Each officer shall be chosen by the Board of Directors and shall
hold office for such term as may be prescribed by the Board of
Directors and until such person's successor shall have been duly
chosen and qualified, or until such person's earlier death,
disqualification, resignation or removal.
Section 4.2
Removal, Resignation and
Vacancies. Any officer of the Corporation may be removed,
with or without cause, by the Board of Directors, without prejudice
to the rights, if any, of such officer under any contract to which
it is a party. Any officer may resign at any time upon notice given
in writing or by electronic transmission to the Corporation. Such
resignation shall take effect when such notice is given unless the
notice specifies (a) a later effective date, or (b) an
effective date determined upon the happening of an event or events,
such as the failure to receive the required vote for reelection as
a director and the acceptance of such resignation by the Board of
Directors. Unless otherwise specified in the notice of resignation,
the acceptance of such resignation shall not be necessary to make
it effective. If any vacancy occurs in any office of the
Corporation, the Board of Directors may elect a successor to fill
such vacancy for the remainder of the unexpired term and until a
successor shall have been duly chosen and qualified.
Section 4.3
Chief Executive Officer.
The Chief Executive Officer shall have general supervision and
direction of the business and affairs of the Corporation, shall be
responsible for corporate policy and strategy, and shall report
directly to the Chairman of the Board of Directors. Unless
otherwise provided in these bylaws, all other officers of the
Corporation shall report directly to the Chief Executive Officer or
as otherwise determined by the Chief Executive Officer. The Chief
Executive Officer shall, if present and in the absence of the
Chairman of the Board of Directors, preside at meetings of the
stockholders and of the Board of Directors.
Section 4.4
President. The President
shall be the chief operating officer of the Corporation, with
general responsibility for the management and control of the
operations of the Corporation. The President shall have the power
to affix the signature of the Corporation to all contracts that
have been authorized by the Board of Directors or the Chief
Executive Officer. The President shall, when requested, counsel
with and advise the other officers of the Corporation and shall
perform such other duties as such officer may agree with the Chief
Executive Officer or as the Board of Directors may from time to
time determine. In the absence of a separately appointed President,
the Chief Executive Officer shall be the President.
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Section 4.5 Chief Financial
Officer. The Chief Financial
Officer shall exercise all the powers and perform the duties of the
office of the chief financial officer and in general have overall
supervision of the financial operations of the Corporation and
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 Chief
Financial Officer shall, when requested, counsel with and advise
the other officers of the Corporation and shall perform such other
duties as such officer may agree with the Chief Executive Officer
or as the Board of Directors may from time to time determine. In
the absence of a separately appointed Treasurer, the Chief
Financial Officer shall be the Treasurer.
Section 4.6
Vice Presidents. The Vice
President shall have such powers and duties as shall be prescribed
by his or her superior officer or the Chief Executive Officer. A
Vice President shall, when requested, counsel with and advise the
other officers of the Corporation and shall perform such other
duties as such officer may agree with the Chief Executive Officer
or as the Board of Directors may from time to time
determine.
Section 4.7
Treasurer. The Treasurer
shall supervise and be responsible for all the funds and securities
of the Corporation, the deposit of all moneys and other valuables
to the credit of the Corporation in depositories of the
Corporation, borrowings and compliance with the provisions of all
indentures, agreements and instruments governing such borrowings to
which the Corporation is a party, the disbursement of funds of the
Corporation and the investment of its funds, and in general shall
perform all of the duties incident to the office of the Treasurer.
The Treasurer shall, when requested, counsel with and advise the
other officers of the Corporation and shall perform such other
duties as such officer may agree with the Chief Executive Officer
or as the Board of Directors may from time to time
determine.
Section
4.8 Secretary.
The powers and duties of the Secretary are to: (i) act as Secretary
at all meetings of the Board of Directors, of the committees of the
Board of Directors and of the stockholders and to record the
proceedings of such meetings in a book or books to be kept for that
purpose; (ii) see that all notices required to be given by the
Corporation are duly given and served; (iii) act as custodian of
the seal of the Corporation and affix the seal or cause it to be
affixed to all certificates of stock of the Corporation and to all
documents, the execution of which on behalf of the Corporation
under its seal is duly authorized in accordance with the provisions
of these bylaws; (iv) have charge of the books, records and papers
of the Corporation and see that the reports, statements and other
documents required by law to be kept and filed are properly kept
and filed; and (v) perform all of the duties incident to the office
of Secretary. The Secretary shall, when requested, counsel with and
advise the other officers of the Corporation and shall perform such
other duties as such officer may agree with the Chief Executive
Officer or as the Board of Directors may from time to time
determine.
Section 4.9
Additional Matters. The
Chief Executive Officer and the Chief Financial Officer of the
Corporation shall have the authority to designate employees of the
Corporation to have the title of Assistant Vice President,
Assistant Treasurer or Assistant Secretary. Any employee so
designated shall have the powers and duties determined by the
officer making such designation. The persons upon whom such titles
are conferred shall not be deemed officers of the Corporation
unless elected by the Board of Directors.
Section 4.10 Execution of Contracts and
Instruments. All contracts,
deeds, mortgages, bonds, certificates, checks, drafts, bills of
exchange, notes and other instruments or documents to be executed
by or in the name of the Corporation shall be signed on the
corporation’s behalf by such officer or officers, or other
person or persons, as may be so authorized (i) by the Board of
Directors, or (ii) subject to such limitations, if any, as the
Board of Directors may impose, by the Chief Executive Officer. Such
authority may be general or confined to specific instances and, if
the Board of Directors or Chief Executive Officer (whichever grants
authority) so authorizes or otherwise directs, may be delegated by
the authorized officers to other persons. Unless otherwise provided
in such resolution, any resolution of the Board of Directors or a
committee thereof authorizing the Corporation to enter into any
such instruments or documents or authorizing their execution by or
on behalf of the Corporation shall be deemed to authorize the
execution thereof on its behalf by the Chief Executive Officer, the
President, Chief Financial Officer or any Vice President (an
“Authorized
Officer”). Furthermore,
each Authorized Officer shall be authorized to enter into any
contract or execute any instrument in the name of and on behalf of
the Corporation in matters arising in the ordinary course of the
Corporation’s business and to the extent incident to the
normal performance of such Authorized Officer’s
duties.
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ARTICLE V
Stock
Section
5.1. Certificates. The
shares of the Corporation may be certificated or uncertificated in
accordance with the Delaware General Corporation Law. The issue of
shares in uncertificated form shall not affect shares represented
by a certificate until the certificate is surrendered to the
Corporation. Every holder of stock represented by certificates
shall be entitled to have a certificate signed by any two
authorized officers of the Corporation certifying the number of
shares owned by such holder in the Corporation. Any of or all 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 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 such person were such officer, transfer agent, or
registrar at the date of issue.
Section
5.2. Lost, Stolen or Destroyed
Stock Certificates; Issuance of New Certificates. The
Corporation may issue a new certificate of stock 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 such owner's
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.
ARTICLE VI
Indemnification and Advancement of Expenses
Section
6.1. Right to
Indemnification. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person (a
"Covered Person") who was or is made or is threatened to be made a
party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that he or she, or a person
for whom he or she is the legal representative, is or was a
director or officer of the Corporation or, while a director or
officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise
or nonprofit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such Covered
Person. Notwithstanding the preceding sentence, except as otherwise
provided in Section 6.3, the Corporation shall be required to
indemnify a Covered Person in connection with a proceeding (or part
thereof) commenced by such Covered Person only if the commencement
of such proceeding (or part thereof) by the Covered Person was
authorized in the specific case by the Board of Directors of the
Corporation.
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Section
6.2. Prepayment of
Expenses. The Corporation shall to the fullest extent not
prohibited by applicable law pay the expenses (including attorneys'
fees) incurred by a Covered Person in defending any proceeding in
advance of its final disposition, provided, however, that, to the extent required
by law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an
undertaking by the Covered Person to repay all amounts advanced if
it should be ultimately determined that the Covered Person is not
entitled to be indemnified under this Article VI or
otherwise.
Section
6.3. Claims. If a claim for
indemnification (following the final disposition of such
proceeding) or advancement of expenses under this Article VI is not
paid in full within thirty (30) days after a written claim therefor
by the Covered Person has been received by the Corporation, the
Covered Person may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to
be paid the expense of prosecuting such claim to the fullest extent
permitted by law. In any such action the Corporation shall have the
burden of proving that the Covered Person is not entitled to the
requested indemnification or advancement of expenses under
applicable law.
Section
6.4. Nonexclusivity of
Rights. The rights conferred on any Covered Person by this
Article VI shall not be exclusive of any other rights which such
Covered Person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, these bylaws,
agreement, vote of stockholders or disinterested directors or
otherwise.
Section
6.5. Other Sources. The
Corporation’s obligation, if any, to indemnify or to advance
expenses to any Covered Person who was or is serving at its request
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity
shall be reduced by any amount such Covered Person may collect as
indemnification or advancement of expenses from such other
corporation, partnership, joint venture, trust, enterprise or
non-profit enterprise.
Section
6.6. Amendment or Repeal.
Any right to indemnification or to advancement of expenses of any
Covered Person arising hereunder shall not be eliminated or
impaired by an amendment to or repeal of these bylaws after the
occurrence of the act or omission that is the subject of the civil,
criminal, administrative or investigative action, suit or
proceeding for which indemnification or advancement of expenses is
sought.
Section
6.7. Other Indemnification and
Advancement of Expenses. This Article VI shall not limit the
right of the Corporation, to the extent and in the manner permitted
by law, to indemnify and to advance expenses to persons other than
Covered Persons when and as authorized by appropriate corporate
action.
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ARTICLE VII
Miscellaneous
Section
7.1. Fiscal Year. The
fiscal year of the Corporation shall be determined by resolution of
the Board of Directors.
Section
7.2. Seal. The corporate
seal shall have the name of the Corporation inscribed thereon and
shall be in such form as may be approved from time to time by the
Board of Directors.
Section
7.3. Method of Notice.
Whenever notice is required by law, the Certificate of
Incorporation or these bylaws to be given by the Corporation to any
director, committee member or stockholder, personal notice shall
not be required and any such notice may be given in writing
(a) by mail, addressed to such director, committee member or
stockholder at his or her address as it appears on the books of the
Corporation, or (b) by any other method permitted by law
(including, but not limited to, overnight courier service,
facsimile, electronic mail or other means of electronic
transmission) directed to the addressee at his, her or its address
most recently provided to the Corporation. Any notice given by the
Corporation by mail shall be deemed to have been given at the time
when deposited in the United States mail. Any notice given by the
Corporation by overnight courier service shall be deemed to have
been given when delivered to such service. Any notice given by the
Corporation by facsimile, electronic mail or other means of
electronic transmission that generally can be accessed by or on
behalf of the receiving party at substantially the same time as it
is transmitted shall be deemed to have been given when transmitted,
unless the Corporation receives a prompt reply that such
transmission is undeliverable to the address to which it was
directed.
Section
7.4. Waiver of Notice.
Whenever any notice is required to be given under the provisions of
the statutes or of the Certificate of Incorporation or of these
bylaws, a waiver thereof in writing, signed by the person or
persons entitled to such notice, or a waiver by electronic
transmission by the person entitled to such notice, whether before
or after the time 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.
Section
7.5. Form of Records. Any
records maintained by the Corporation in the regular course of its
business, including its stock ledger, books of account, and minute
books, may be kept on, or by means of, or be in the form of, any
information storage device or method, provided that the records so
kept can be converted into clearly legible paper form within a
reasonable time.
Section
7.6. Amendment of Bylaws.
These bylaws may be altered, amended or repealed or new bylaws may
be adopted by the stockholders or by the Board of
Directors.
15
Section 7.7.
Registered
Stockholders. The Corporation
shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends
and to vote as such owner and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on
the part of another person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of
Delaware.
Section
7.8. Facsimile
Signature. In addition to the
provisions for use of facsimile signatures elsewhere specifically
authorized in these Bylaws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized
by the Board of Directors or a committee
thereof.
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