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EX-23.1 - CONSENT OF MARCUM LLP - NRX Pharmaceuticals, Inc. | brpa_ex231.htm |
EX-3.1 - CERTIFICATE OF INCORPORATION - NRX Pharmaceuticals, Inc. | brpa_ex31.htm |
S-1 - FORM S-1 - NRX Pharmaceuticals, Inc. | brpa_s1a.htm |
Exhibit 3.3
BYLAWS
OF
BIG ROCK PARTNERS ACQUISITION CORP.
Adopted as of SEPTEMBER 26, 2017
ARTICLE
I
OFFICES
Section
1. Registered Office and Agent.
The name of the corporation’s registered agent and the office
of its registered office in the State of Delaware are as
follows:
The
Corporation Trust Company
1209
Orange Street
Wilmington,
DE 19801
New
Castle County
Section
2. Principal Office. The address
of the principal office of the corporation is as
follows:
2645 N.
Federal Highway, Suite 230, Delray Beach, Florida
33483
Section
3. Other Offices. The corporation
may also have an office or offices at such other place or places,
within or without the State of Delaware, as the board of directors
may from time to time designate or the business of the corporation
may require.
ARTICLE II
STOCKHOLDERS
Section
1. Annual Meetings. The annual
meeting of the stockholders shall be held at such time and place
and on such date in each year, within or without the State of
Delaware, as may be determined by the board of directors and as
shall be designated in the notice of the meeting.
Section
2. Purposes of Annual Meeting. The
annual meeting of the stockholders shall be held for the purpose of
electing directors and for the transaction of such other business
as may properly be brought before the meeting, notice of which
shall be given in the notice of the meeting.
Section
3. Failure to Elect Directors at Annual
Meeting. If the election of directors shall not be held on
the day designated for any annual meeting, or at any adjournment
thereof, the board of directors shall cause the election to be held
at a special meeting of the stockholders as soon thereafter as
convenient. At such meeting, the stockholders may elect directors
and transact other business with the same force and effect as at an
annual meeting.
Section
4. Special Meetings. Special
meetings of the stockholders shall be held at such time and place
and on such date in each year, within or without the State of
Delaware, as may be determined by the person or persons calling the
meeting and as shall be designated in the notice of the meeting.
Special meetings of the stockholders may be called by the board of
directors, the Chairman of the Board of Directors (sometimes
hereafter in these bylaws, the “Chairman ”), or the
President and shall be called by the Chairman, the President, or
the Secretary at the request in writing of stockholders owning at
least one-fifth of the issued and outstanding shares of capital
stock of the corporation entitled to vote. Calls for such meetings
shall specify the purposes thereof and no business other than that
specified in the call shall be considered at any special
meeting.
Section
5. Notice of Meetings and Adjourned
Meetings. Unless waived as provided below, and except as
provided in Section 230 of the General Corporation Law of the State
of Delaware, not less than ten nor more than sixty days before any
stockholders’ meeting, the Chairman, the President, the
Secretary, or an Assistant Secretary shall give each stockholder
entitled to vote at the meeting written notice of the place, date,
and hour of the meeting and the purpose or purposes for which the
meeting is called. Such notice shall be mailed to each stockholder
at his address as it appears on the corporation’s records.
When a meeting is adjourned to another time or place, notice need
not be given if the time and place of the adjourned meeting are
announced at the meeting at which the adjournment is taken. If the
adjournment is for a period of more than thirty days, or if, after
the adjournment, a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote. Except as otherwise
expressly provided by statute, no publication of any notice of a
stockholders’ meeting shall be required. Any stockholder,
either before or after any meeting, may waive any notice required
to be given by law or pursuant to these bylaws.
42934305;2
1
Section
6. Quorum. Except as otherwise
provided by law or the Certificate of Incorporation, the presence,
in person or by proxy, of the holders of record of a majority of
the shares of the capital stock of the corporation then issued and
outstanding and entitled to vote at the meeting shall constitute a
quorum for the transaction of business to be considered at such
meeting; provided, however, that no action required by law or by
the Certificate of Incorporation or these bylaws to be authorized
as taken by the holders of a designated proportion of a particular
class or series of shares may be authorized or taken by a lesser
proportion and provided, further, that if a separate class vote is
required with respect to any matter, the holders of a majority of
the outstanding shares of such class, present in person or by
proxy, shall constitute a quorum of such class, and, except as
otherwise provided by law or the Certificate of Incorporation, the
affirmative vote of a majority of shares of such class so present
shall be the act of such class. In the absence of a quorum at any
meeting or any adjournment thereof, a majority of those present, in
person or by proxy and entitled to vote, may adjourn the meeting
from time to time. At any adjourned meeting at which a quorum is
present, any business which might have been transacted at the
meeting as originally called may be transacted.
Section
7. Organization. Meetings of the
stockholders shall be presided over by the Chairman, or if he is
not present, by the President, or, if neither the Chairman nor the
President is present, by a chairman to be chosen by a majority of
the stockholders entitled to vote who are present in person or by
proxy at the meeting. The Secretary of the corporation, or in the
Secretary’s absence, an Assistant Secretary, shall act as
secretary of every meeting of the stockholders but, if neither the
Secretary nor an Assistant Secretary is present, the meeting shall
choose any person present thereat to act as secretary of the
meeting.
Section
8. Voting. Except as otherwise
provided by law or the Certificate of Incorporation, and subject to
the provisions of Sections 4 and 5 of Article VI of these
bylaws, at every meeting of the stockholders, each stockholder of
the corporation entitled to vote at the meeting shall have one
vote, in person or by proxy, for each share of stock having voting
rights held by the stockholder. Any stockholder entitled to vote
may do so either in person or by proxy appointed by an instrument
in writing, subscribed by such stockholder or by the
stockholder’s attorney thereunto authorized and delivered to
the secretary of the meeting; provided, however, that no proxy
shall be voted on after three years from its date unless the proxy
provides for a longer period. Except as otherwise required by law,
the Certificate of Incorporation or these bylaws, all matters
coming before any meeting of the stockholders shall be decided by
the vote of a majority in interest of the stockholders present, in
person or by proxy, at the meeting and entitled to vote, a quorum
being present. Unless otherwise provided in the Certificate of
Incorporation, voting at all elections for directors need not be by
ballot and shall not be cumulative.
Section
9. Voting of Shares by Certain
Holders.
A. Shares standing in
the name of another corporation, domestic or foreign, may be voted
by such officer, agent, or proxy as the bylaws of the other
corporation may prescribe, or, in the absence of an appropriate
provision, as the board of directors of the other corporation may
determine.
B. Shares standing in
the name of a deceased person may be voted by the decedent’s
administrator or executor. Shares standing in the name of a
guardian, conservator, or trustee may be voted by such fiduciary,
but no guardian, conservator, or trustee shall be entitled, as such
fiduciary, to vote shares held by such fiduciary without a transfer
of such shares into the fiduciary’s name.
C. Shares standing in
the name of a receiver may be voted by the receiver. Shares held by
or under the control of a receiver may be voted by the receiver
without transfer thereof into the receiver’s name if the
authority so to do is contained in an appropriate order of the
court by which the receiver was appointed.
D. A stockholder whose
shares are pledged shall be entitled to vote the pledged shares
unless, in the transfer by the pledgor on the corporation’s
books, the pledgor has expressly empowered the pledgee to vote
thereon, in which case only the pledgee may vote
thereon.
E. Shares of its own
capital 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 counted for quorum purposes; provided, however, that
nothing herein shall be construed as limiting the right of the
corporation to vote stock, including but not limited to its own
capital stock, held by it in a fiduciary capacity.
F. If shares are
registered in the names of two or more persons, or if two or more
persons have the same fiduciary relationship respecting the same
shares, unless the Secretary is given written notice to the
contrary and is furnished with a copy of the instrument or order
appointing such persons or creating the relationship so providing,
their acts with respect to voting shall have the following
effect:
2
(a) if only one votes,
the voter’s act binds all;
(b) if more than one
votes, the act of the majority so voting binds all;
(c) if the vote is
evenly split, each faction may vote on the stock proportionately
unless otherwise ordered by a court pursuant to the laws of the
State of Delaware.
If an
instrument showing that tenancy is held in unequal shares is filed
with the Secretary, a majority or even-split shall be determined by
interest.
Section
10. List of Stockholders. A
complete list of the stockholders entitled to vote at each meeting
of the stockholders, arranged in alphabetical order and the number
of shares registered in the name of each stockholder, shall be
prepared by the Secretary or other officer of the corporation
having charge of the stock ledger, at least ten days before the
meeting. 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 days prior to
the meeting, either at a place within the city, town, or village
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, and the list shall be produced and
kept at the time and place of the meeting during the whole time
thereof for inspection by any stockholder who may be
present.
Section
11. Inspectors. At any meeting of
the stockholders, the chairman of the meeting may, or upon the
request of any one or more stockholders or proxies holding or
representing not less than ten percent of the outstanding shares
shall, appoint one or more persons as inspectors for such meeting.
Such inspectors shall ascertain and report the number of shares
represented at the meeting, based upon their determination of the
validity and effect of proxies; count all votes and report the
results; and do all such other acts as are proper to conduct the
election and voting with impartiality and fairness. Each report of
an inspector shall be in writing and signed by the inspector or by
a majority of them if there be more than one inspector acting at
such meeting. If there is more than one inspector, the report of a
majority shall be the report of the inspectors. The report of the
inspector or inspectors on the number of shares represented at the
meeting and the results of the voting shall be prima facie evidence
thereof.
Section
12. Informal Action by
Stockholders. Except as otherwise provided by the
Certificate of Incorporation, any action required to be taken at a
meeting of the stockholders, or any other action which may be taken
at a meeting of the stockholders, may be taken without a meeting,
without prior notice and without a vote, if a written consent,
setting forth the action so taken, shall be signed by the holders
of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote were present and
voted. Prompt notice of the taking of corporate action without a
meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing.
ARTICLE
III
DIRECTORS
Section
1. Power, Number, and Term of
Directors. Except as otherwise provided by law or the
Certificate of Incorporation, the property, affairs, and business
of the corporation shall be managed by its board of directors,
consisting of not less than one nor more than ten persons, as fixed
from time to time by resolution of the board of directors or
stockholders, and shall initially be set at two (2). Subject to
Section 3 of Article II above, the board shall be divided into two
classes, as nearly equal in number as possible, with staggered
terms as provided under § 141(d) of the General Corporate Law
of the State of Delaware, with one class being elected each year to
serve a staggered two−year term. The term of the initial
Class I directors shall expire at the first annual meeting of the
stockholders of the corporation following the effectiveness of
these Bylaws; the term of the Class II directors shall expire at
the second annual meeting of the stockholders of the corporation
following the effectiveness of these Bylaws. At each succeeding
annual meeting of the stockholders of the corporation, beginning
with the first annual meeting of the stockholders of the
corporation following the effectiveness of these Bylaws, successors
to the class of directors whose term expires at that annual meeting
shall be elected for a two-year term or until the election and
qualification of their respective successors in office, subject to
their earlier death, resignation or removal. The directors shall
have power, from time to time and at any time when the stockholders
as such are not assembled in a meeting, to increase or decrease
their own number by an amendment to these bylaws. If the number of
directors is increased, the additional directors may be elected by
a majority of the directors in office at the time of the increase,
or if not so elected prior to the next meeting of the stockholders,
the additional directors shall be elected by the stockholders.
Directors need not be stockholders of the corporation.
Section
2. Quorum. A majority of the
members of the board of directors in office shall constitute a
quorum for the transaction of business; provided, however, a
majority of directors then in office shall constitute a quorum for
filling a vacancy on the board. If at any meeting of the board of
directors a quorum shall not be present, a majority of the
directors present may, without further notice, adjourn the meeting
from time to time until a quorum shall have been
obtained.
3
Section
3. Vacancies. In case one or more
vacancies shall occur in the board of directors by reason of death,
resignation, or otherwise, except insofar as otherwise provided in
the case of a vacancy or vacancies occurring by reason of removal
by the stockholders, the remaining directors, although less than a
quorum, may by a vote of the majority of the directors then in
office elect a successor or successors for the unexpired term or
terms.
Section
4. Meetings. Meetings of the board
of directors, annual, regular, and special, shall be held at such
place within or without the State of Delaware as may from time to
time be fixed by resolution of the board of directors or as may be
specified in the notice of meeting. Regular meetings of the board
of directors shall be held at such times as may from time to time
be fixed by resolution of the board of directors, and no notice
(other than the resolution) need be given as to any regular
meeting. Special meetings may be held at any time upon the call of
the Chairman, the President, any Vice President, or the Secretary,
or any two directors, by oral, telegraphic, or written notice duly
served on or sent or mailed to each director not less than two days
before the meeting. An annual meeting of the board of directors
shall be held without notice immediately after, and at the same
place as, the annual meeting of the stockholders. Meetings may be
held at any time without notice if all the directors are present or
if, at any time before or after the meeting, those not present
waive notice of the meeting in writing.
Section
5. Attendance by Communications
Equipment. Unless otherwise restricted by the Certificate of
Incorporation, members of the board of directors or of any
committee designated by the board may participate in a meeting of
the board or any such committee by means of conference telephone or
similar communications equipment whereby all persons participating
in the meeting can hear each other. Participation in any meeting by
such means shall constitute presence in person at such
meeting.
Section
6. Presumption of Assent. A
director of the corporation who is present at a meeting of the
board of directors at which action on any corporate matter is taken
shall be conclusively presumed to have assented to the action taken
unless his dissent shall be entered in the minutes of the meeting
or unless he shall file his written dissent to the action with the
person acting as the secretary of the meeting before the
adjournment thereof or shall forward his written dissent by
registered mail to the Secretary of the corporation immediately
after the adjournment of the meeting. The right to dissent shall
not apply to a director who voted in favor of the
action.
Section
7. Chairman. The Chairman of the
Board of Directors, if a Chairman of the Board of Directors has
been elected and is serving, shall preside at all meetings of the
stockholders and of the board of directors.
Section
8. Committees. The board of
directors may, in its discretion, by the affirmative vote of a
majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence
or disqualification of any member of a committee, the member or
members thereof present at any meeting and not disqualified from
voting, whether 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 the absent or disqualified member. Except
as otherwise provided by law or these bylaws, any committee, to the
extent provided by 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. No committee shall have or exercise the powers and
authority of the board of directors with respect to filling
vacancies among the directors or in any committee of the directors;
amending the Certificate of Incorporation; adopting an agreement of
merger or consolidation; recommending to the stockholders the sale,
lease, or exchange of all or substantially all of the
corporation’s property and assets; recommending to the
stockholders a dissolution of the corporation or a revocation of a
dissolution; amending the bylaws; or, unless the resolution of the
board of directors expressly so provides, declaring a dividend or
authorizing the issuance of stock. A majority of the members of a
committee may determine its action and fix the time and place of
its meetings, unless the board of directors shall otherwise
provide. The board of directors shall have the power at any time to
fill vacancies in, to change the membership of, or to discharge any
committee.
Section
9. Dividends and Reserves. Subject
to the laws of the State of Delaware and the Certificate of
Incorporation, the board of directors shall have full power to
determine whether any, and if any, what part of any, funds legally
available for the payment of dividends shall be declared in
dividends and paid to the stockholders. The division of the whole
or any part of funds legally available shall rest wholly within the
lawful discretion of the board of directors, and it shall not be
required at any time, against such discretion, to divide or pay any
part of such funds among or to the stockholders as dividends or
otherwise. The board of directors may set apart out of funds
legally available for the payment of dividends a reserve or
reserves for any proper purpose, and may from time to time, in its
absolute judgment and discretion, increase, abolish, diminish, and
vary any reserve or reserves so set apart.
Section
10. Removal of Directors. At any
duly called and held special meeting of the stockholders, any
director or directors may, by the affirmative vote of the holders
of a majority of all the shares of stock outstanding and entitled
to vote in an election of directors, be removed from office, either
with or without cause; provided, however, that, if the stockholders
of the corporation are entitled under the provisions of the
Certificate of Incorporation to exercise cumulative voting rights
in the election of directors, then no removal shall be effective if
the holders of that proportion of the shares of stock outstanding
and entitled to vote for an election of directors as could elect to
the full board as then provided by these bylaws the director or
directors sought to be removed shall vote against removal. The
successor or successors to any director or directors so removed may
be elected by the stockholders at the meeting at which removal was
effectuated. The remaining directors may, to the extent vacancies
are not filled by election by the stockholders, fill any vacancy or
vacancies created by the removal.
4
Section
11. Informal Action. Any action
required or permitted to be taken at any meeting of the board of
directors or any committee thereof may be taken without a meeting
if a written consent thereto is signed by all members of the board
or of the committee, as the case may be, and such written consent
is filed with the minutes of proceedings of the board or the
committee.
ARTICLE
IV
WAIVER OF NOTICE
Whenever, by law,
the Certificate of Incorporation, or these bylaws, notice is
required to be given, a written waiver thereof, signed by the
person entitled to notice, whether before or after the date of the
meeting, shall be deemed equivalent to notice. Attendance of a
person at a meeting of the stockholders, the board of directors, or
any committee designated by the board of directors shall constitute
a waiver of notice of the meeting, except when the person attends
the meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors, or any committee designated
thereby need be specified in any written waiver of notice unless so
required by law, the Certificate of Incorporation, or these
bylaws.
ARTICLE
V
OFFICERS
Section
1. Number. The board of directors
shall elect a President and a Secretary and, from time to time, may
elect a Chairman of the Board of Directors, a Treasurer and Chief
Financial Officer (the “ Treasurer ”), one or more
Vice Presidents, and such Assistant Secretaries, Assistant
Treasurers and other officers, agents, and employees as it may deem
proper. Unless the Certificate of Incorporation otherwise provides,
any number of offices may be held by the same person.
Section
2. Term and Removal. The term of
office of each officer shall be one year and until the
officer’s successor is elected and qualified, but any officer
may be removed from office, either with or without cause, at any
time by the affirmative vote of a majority of the members of the
board of directors then in office. A vacancy in any office arising
from any cause may be filled for the unexpired portion of the term
by the board of directors.
Section
3. Delegation. The officers of the
corporation will from time to time receive written grants of
authority from the corporation’s parent to engage in certain
transactions on behalf of the corporation (a “ Delegation ”). All
actions taken by the officers of the corporation pursuant to a
Delegation will at all times be subject to the limitations set
forth therein. The officers of the corporation may subdelegate in
writing the authority granted to them by a Delegation to the
officers of the corporation’s subsidiaries.
Section
4. The President. The President
shall be the chief executive officer of the corporation and shall,
subject to the direction and control of the board of directors, in
general supervise and control all of the business, affairs and
operations of the corporation. In the absence of the Chairman, the
President shall preside at all meetings of the stockholders and of
the board of directors. In the absence of the Chairman or in the
event of the Chairman’s inability or refusal to act, the
President shall perform the duties of the Chairman and, when so
acting, shall have all the powers of and be subject to all the
restrictions upon the Chairman. The President may sign certificates
for shares of the corporation, any deeds, mortgages, bonds,
contracts, or other instruments which require the President’s
signature, except in cases where the execution thereof shall be
expressly delegated by the board of directors or by these bylaws to
some other officer or agent of the corporation or shall be required
by law to be otherwise executed. In general, the President shall
perform all duties incident to the office of President and chief
executive officer of the corporation and such other duties as may
be prescribed from time to time by the board of directors or the
Chairman.
Section
5. Vice Presidents. In the absence
of the President or in the event of the President’s inability
or refusal to act, the Vice President (or in the event there be
more than one Vice President, the Vice Presidents in the order
designated, or in the absence of any designation, then in the order
of their election) shall perform the duties of the President,
including, without limitation, the duties of the Chairman if and as
assumed by the President as a result of the absence of the Chairman
or the Chairman’s inability or refusal to act, and the Vice
President, when so acting, shall have all of the powers and be
subject to all the restrictions upon the President. Each Vice
President shall perform such other duties as from time to time may
be assigned to the Vice President by the Chairman, the President,
or the board of directors. The authority of Vice Presidents to sign
in the name of the corporation certificates for shares of the
corporation and deeds, mortgages, bonds, contracts, or other
instruments shall be coordinate with like authority of the
President.
Section
6. Treasurer and Chief Financial
Officer. If required by the board of directors, the
Treasurer shall give a bond for the faithful discharge of the
Treasurer’s duties in such sum and with such surety or
sureties as the board of directors shall determine. The Treasurer
shall have charge and custody of and be responsible for all funds
and securities of the corporation, receive and give receipts for
moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies, or other depositories
as shall be selected in accordance with the provisions of these
bylaws. The Treasurer shall in general perform all the duties
incident to the office of Treasurer and such other duties as from
time to time may be assigned to the Treasurer by the Chairman, the
President, or the board of directors.
5
Section
7. Secretary. The Secretary shall:
(a) keep records of corporate action, including the minutes of
meetings of the stockholders and the board of directors in one or
more books provided for that purpose; (b) see that all notices are
duly given in accordance with the provisions of these bylaws or as
required by law; (c) be custodian of the corporate records and of
the seal of the corporation; (d) keep a register of the post office
address of each stockholder which shall be furnished to the
Secretary by such stockholder; (e) sign, with the Chairman, the
President, or a Vice President, certificates for shares of the
corporation, the issuance of which shall have been authorized by
resolution of the board of directors; (f) have general charge of
the stock transfer books of the corporation; and (g) in general,
perform all duties incident to the office of Secretary and such
other duties as from time to time may be assigned to the Secretary
by the Chairman, the President, or the board of
directors.
Section
8. Assistant Treasurers and Assistant
Secretaries. The Assistant Treasurers shall, if required by
the board of directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the board of
directors shall determine. The Assistant Secretaries as thereunto
authorized by the board of directors may sign, with the Chairman,
the President, or a Vice President, certificates for shares of the
corporation, the issuance of which shall have been authorized by a
resolution of the board of directors. The Assistant Treasurers and
Assistant Secretaries in general shall perform such duties as shall
be assigned to them by the Treasurer or the Secretary,
respectively, or by the President, the Chairman, or the board of
directors.
ARTICLE
VI
STOCK CERTIFICATES
Section
1. Form of Stock Certificates. The
interest of each stockholder of the corporation shall be evidenced
by certificates for shares of stock, certifying the number of
fully-paid shares represented thereby and in such form, not
inconsistent with the Certificate of Incorporation, as the board of
directors may from time to time prescribe. 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.
Section
2. Execution and Issuance of Certificates
of Stock. Stock certificates shall be signed by the Chairman
or a Vice-Chairman of the Board of Directors or the President or a
Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary. If any stock certificate
is signed by a transfer agent or a registrar, other than the
corporation or its employees, the signatures of the Chairman, the
President, a Vice President, the Secretary, or an Assistant
Secretary upon such certificate may be facsimiles, engraved or
printed. In case any such officer who has signed, or whose
facsimile signature has been placed upon, a stock certificate shall
have ceased to be such before such certificate is issued, it may be
issued by the corporation with the same effect as if such officer
had not ceased to be such at the time of its issuance.
Section
3. Transfer of Certificates of
Stock. Except as otherwise provided by the Certificate of
Incorporation or these bylaws, any certificate for shares of the
corporation shall be transferable in person or by attorney upon the
surrender thereof to the corporation or any transfer agent therefor
properly endorsed for transfer and accompanied by such assurances
as the corporation or such transfer agent may require as to the
genuineness and effectiveness of each necessary
document.
Section
4. Fixing the Date for Determination of
Stockholders of Record. To 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 any 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 nor less than ten days
before the date of such meeting, nor more than sixty days prior to
any other action. To determine the stockholders entitled to consent
to corporate action in writing without a meeting, the board of
directors may fix in advance a record date, which shall not be more
than ten days after the date upon which the resolution fixing the
record date is adopted by the board of directors. No record date
shall precede the date upon which the resolution fixing such date
is adopted by the board of directors. A determination of
stockholders entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting unless
the board of directors fixes a new record date for the adjourned
meeting.
Section
5. Failure to Fix Record Date. If
no record date is fixed in accordance with Section 4 of this
Article VI:
A. The record date for
determining stockholders entitled to notice 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 the 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 required by law, shall be the first date on
which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by delivery to
the place where the proceedings of the corporation are recorded and
the custodian of such proceedings. When prior action by the board
of directors is required by law, the record date shall be at the
close of business on the day on which the board of directors adopts
the resolution taking such prior action.
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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.
Section
6. Lost, Stolen, or Destroyed Stock
Certificates. No stock certificate representing shares of
the corporation shall be issued in place of any certificate alleged
to have been lost, stolen, or destroyed except upon delivery to the
corporation of such evidence as the board of directors may in its
discretion require. The board of directors may also require a bond
to be delivered to the corporation upon such terms and secured by
such surety as the board shall deem fit.
Section
7. Transfer Agent and Registrar.
The board of directors may appoint one or more transfer agents or
one or more transfer clerks and one or more registrars and may
require all stock certificates to bear the signature or signatures
of any of them.
Section
8. Examination of Books by
Stockholders. The board shall have power to determine, from
time to time, whether and to what extent and at what times and
places and under what conditions and regulations the accounts and
books and documents of the corporation, or any of them, shall be
open to the inspection of the stockholders; and no stockholder
shall have any right to inspect any account or book or document of
the corporation except as otherwise, and only to the extent,
provided by law.
ARTICLE
VII
INTEREST OF DIRECTORS OR OFFICERS
IN CERTAIN TRANSACTIONS
Section
1. Action or Criteria Required. No
contract or transaction between the corporation and one or more of
its directors or officers, and no contract or transaction between
the corporation and any other corporation, partnership,
association, or other organization in which one or more of its
directors or officers are directors or officers or have a financial
interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or
participates in the meeting of the board of directors or committee
thereof which authorizes the contract or transaction, or solely
because the vote of an interested director is counted for such
purposes, if:
A. the material facts
as to the director’s relationship or interest and as to the
contract or transaction are disclosed or are known to the board of
directors or the committee, and the board or committee in good
faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
B. the material facts
as to the director’s relationship or interest and as to the
contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
C. the contract or
transaction is fair as to the corporation as to the time it is
authorized, approved, or ratified, by the board of directors, a
committee thereof, or the stockholders.
Section
2. Effect of Quorum. Common or
interested directors may be counted in determining the presence of
a quorum at any meeting of the board of directors or of a committee
thereof.
ARTICLE
VIII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section
1. Power to Indemnify. The
corporation shall indemnify any person who is or was a director or
officer of the corporation to the fullest extent permitted by law.
The corporation shall have the power to indemnify any person who is
or was an employee or agent of the corporation, or who 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 (including an employee benefit
plan), to the fullest extent permitted by law. For purpose of this
Article VIII, the term “officer” shall mean the
Chairman of the Board, President, Treasurer, Secretary, any Vice
President of the corporation, and such other officers as are
determined to be entitled to indemnification by resolution of the
board of directors.
Section
2. Advancement of Expenses.
Expenses (including attorneys’ fees) incurred by a current of
former director or officer in defending any civil, criminal,
administrative, or investigative action, suit, or proceeding shall
be paid by the corporation in advance of the final disposition of
such action, suit, or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it
shall be ultimately determined that such person is not entitled to
be indemnified by the corporation. Such expenses (including
attorneys’ fees) incurred by employees or agents may be so
paid upon such terms and conditions, if any, as the corporation
deems appropriate.
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Section
3. Insurance. The corporation
shall have the power to purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee, or agent
of the corporation, or who 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
(including an employee benefit plan), against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to
indemnify such person against such liability under applicable
law.
Section
4. Other Rights. The rights to
indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement
of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise, both as to
action in such person’s official capacity and as to action in
another capacity while holding such office.
ARTICLE
IX FISCAL
YEAR
The
fiscal year of the corporation shall be as determined by the board
of directors of the corporation. In the absence of such
determination, the fiscal year of the corporation shall be the
calendar year.
ARTICLE
X CORPORATE
SEAL
The
board of directors may provide a suitable seal, including
duplicates thereof, containing the name of the
corporation.
ARTICLE
XI
AMENDMENTS
These
bylaws shall be subject to alteration, amendment, or repeal, and
new bylaws, not inconsistent with any provision of law or the
Certificate of Incorporation, may be made, either by the
affirmative vote of a majority of the whole board of directors at
any meeting thereof or, if the power to make, amend, alter or
repeal the bylaws shall not have been granted to the board of
directors in the Certificate of Incorporation, by the affirmative
vote of the holders of a majority in interest of the stockholders
of the corporation present in person or by proxy at any annual or
special meeting and entitled to vote thereat, a quorum being
present. Notice of the proposal to make, alter, amend, or repeal
the bylaws of the corporation shall be included in the notice of
such meeting of the board of directors or of the stockholders, as
the case may be.
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