Attached files
Exhibit
3.4
AMENDED AND RESTATED
BY
LAWS
OF
BIG
ROCK PARTNERS ACQUISITION CORP.
(THE
“CORPORATION”)
ARTICLE
I.
OFFICES
Section
1.1 Registered Office.
The registered office of the Corporation within the State of
Delaware shall be located at either (a) the principal place of
business of the Corporation in the State of Delaware or (b) the
office of the corporation or individual acting as the
Corporation’s registered agent in Delaware.
Section
1.2 Additional Offices.
The Corporation may, in addition to its registered office in the
State of Delaware, have such other offices and places of business,
both within and outside the State of Delaware, as the Board of
Directors of the Corporation (the “Board”) may from
time to time determine or as the business and affairs of the
Corporation may require.
ARTICLE
II.
STOCKHOLDERS MEETINGS
Section
2.1 Annual Meetings.
The annual meeting of stockholders shall be held at such place,
either within or without the State of Delaware and time and on such
date as shall be determined by the Board and stated in the notice
of the meeting, provided that the Board may in its sole discretion
determine that the meeting shall not be held at any place, but may
instead be held solely by means of remote communication pursuant to
Section 9.5(a). At each annual meeting, the stockholders entitled
to vote on such matters shall elect those directors of the
Corporation to fill any term of a directorship that expires on the
date of such annual meeting and may transact any other business as
may properly be brought before the meeting.
Section
2.2 Special Meetings.
Subject to the rights of the holders of any outstanding series of
the preferred stock of the Corporation (“Preferred
Stock”), and to the requirements of applicable law, special
meetings of stockholders, for any purpose or purposes, may be
called only by the Chairman of the Board, Chief Executive Officer,
or the Board pursuant to a resolution adopted by a majority of the
Board, and may not be called by any other person. Special meetings
of stockholders shall be held at such place, either within or
without the State of Delaware, and at such and time and on such
date as shall be determined by the Board and stated in the
Corporation’s notice of the meeting, provided that the Board
may in its sole discretion determine that the meeting shall not be
held at any place, but may instead be held solely by means of
remote communication pursuant to Section 9.5(a).
Section
2.3 Notices. Written
notice of each stockholders meeting stating the place, if any,
date, and time of the meeting, and the means of remote
communication, if any, by which stockholders and proxy holders may
be deemed to be present in person and vote at such meeting and the
record date for determining the stockholders entitled to vote at
the meeting, if such date is different from the record date for
determining stockholders entitled to notice of the meeting, shall
be given in the manner permitted by Section 9.3 to each stockholder
entitled to vote thereat as of the record date for determining the
stockholders entitled to notice of the meeting, by the Corporation
not less than 10 nor more than 60 days before the date of the
meeting unless otherwise required by the General Corporation Law of
the State of Delaware (the “DGCL”). If said notice is
for a stockholders meeting other than an annual meeting, it shall
in addition state the purpose or purposes for which the meeting is
called, and the business transacted at such meeting shall be
limited to the matters so stated in the Corporation’s notice
of meeting (or any supplement thereto). Any meeting of stockholders
as to which notice has been given may be postponed, and any meeting
of stockholders as to which notice has been given may be cancelled,
by the Board upon public announcement (as defined in Section
2.7(c)) given before the date previously scheduled for such
meeting.
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Section
2.4 Quorum. Except as
otherwise provided by applicable law, the Corporation’s
Certificate of Incorporation, as the same may be amended or
restated from time to time (the “Certificate of
Incorporation”) or these By Laws, the presence, in person or
by proxy, at a stockholders meeting of the holders of shares of
outstanding capital stock of the Corporation representing a
majority of the voting power of all outstanding shares of capital
stock of the Corporation entitled to vote at such meeting shall
constitute a quorum for the transaction of business at such
meeting, except that when specified business is to be voted on by a
class or series of stock voting as a class, the holders of shares
representing a majority of the voting power of the outstanding
shares of such class or series shall constitute a quorum of such
class or series for the transaction of such business. If a quorum
shall not be present or represented by proxy at any meeting of the
stockholders of the Corporation, the chairman of the meeting may
adjourn the meeting from time to time in the manner provided in
Section 2.6 until a quorum shall attend. The stockholders present
at a duly convened meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum. Shares of its own stock belonging to
the Corporation or to another corporation, if a majority of the
voting power 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 such
other corporation to vote shares held by it in a fiduciary
capacity.
Section
2.5 Voting of
Shares.
(a) Voting Lists. The
Secretary of the Corporation (the “Secretary”) shall
prepare, or shall cause the officer or agent who has charge of the
stock ledger of the Corporation to prepare and make, at least 10
days before every meeting of stockholders, a complete list of the
stockholders of record entitled to vote at such meeting; provided,
however, that if the record date for determining the stockholders
entitled to vote is less than 10 days before the meeting date, 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 and the number and class of shares
registered in the name of each stockholder. Nothing contained in
this Section 2.5(a) shall require the Corporation to include
electronic mail addresses or other electronic contact information
on such list. 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 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 the meeting, or (ii) during ordinary
business hours, at the principal place of business of the
Corporation. In the event that the Corporation determines to make
the list available on an electronic network, the Corporation may
take reasonable steps to ensure that such information is available
only to stockholders of the Corporation. If the meeting is to be
held at a place, then the list shall be produced and kept at the
time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present. If a meeting of
stockholders is to be held solely by means of remote communication
as permitted by Section 9.5(a), the list shall 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
meeting. The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the list required by this
Section 2.5(a) or to vote in person or by proxy at any meeting of
stockholders.
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(b) Manner of Voting.
At any stockholders meeting, every stockholder entitled to vote may
vote in person or by proxy. If authorized by the Board, the voting
by stockholders or proxy holders at any meeting conducted by remote
communication may be effected by a ballot submitted by electronic
transmission (as defined in Section 9.3), provided that any such
electronic transmission must either set forth or be submitted with
information from which the Corporation can determine that the
electronic transmission was authorized by the stockholder or proxy
holder. The Board, in its discretion, or the chairman of the
meeting of stockholders, in such person’s discretion, may
require that any votes cast at such meeting shall be cast by
written ballot.
(c) Proxies. Each
stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a
meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for
a longer period. Proxies need not be filed with the Secretary until
the meeting is called to order, but shall be filed with the
Secretary before being voted. Without limiting the manner in which
a stockholder may authorize another person or persons to act for
such stockholder as proxy, either of the following shall constitute
a valid means by which a stockholder may grant such authority. No
stockholder shall have cumulative voting rights.
(i) A stockholder may
execute a writing authorizing another person or persons to act for
such stockholder as proxy. Execution may be accomplished by the
stockholder or such stockholder’s authorized officer,
director, employee or agent signing such writing or causing such
person’s signature to be affixed to such writing by any
reasonable means, including, but not limited to, by facsimile
signature.
(ii) A
stockholder may authorize another person or persons to act for such
stockholder as proxy by transmitting or authorizing the
transmission of an electronic transmission to the person who will
be the holder of the proxy or to a proxy solicitation firm, proxy
support service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such
transmission, provided that any such electronic transmission must
either set forth or be submitted with information from which it can
be determined that the electronic transmission was authorized by
the stockholder. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission authorizing
another person or persons to act as proxy for a stockholder may be
substituted or used in lieu of the original writing or transmission
for any and all purposes for which the original writing or
transmission could be used; provided that such copy, facsimile
telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or
transmission.
(d) Required Vote.
Subject to the rights of the holders of one or more series of
Preferred Stock, voting separately by class or series, to elect
directors pursuant to the terms of one or more series of Preferred
Stock, at all meetings of stockholders at which a quorum is
present, the election of directors shall be determined by a
plurality of the votes cast by the stockholders present in person
or represented by proxy at the meeting and entitled to vote
thereon. All other matters presented to the stockholders at a
meeting at which a quorum is present shall be determined by the
vote of a majority of the votes cast by the stockholders present in
person or represented by proxy at the meeting and entitled to vote
thereon, unless the matter is one upon which, by applicable law,
the Certificate of Incorporation, these By Laws or applicable stock
exchange rules, a different vote is required, in which case such
provision shall govern and control the decision of such
matter.
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(e) Inspectors of
Election. The Board may, and shall if required by law, in advance
of any meeting of stockholders, designate one or more persons as
inspectors of election, who may be employees of the Corporation or
otherwise serve the Corporation in other capacities, to act at such
meeting of stockholders or any adjournment thereof and to make a
written report thereof. The Board may appoint one or more persons
as alternate inspectors to replace any inspector who fails to act.
If no inspectors of election or alternates are appointed by the
Board, the chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before
discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The
inspectors shall ascertain and report the number of outstanding
shares and the voting power of each; determine the number of shares
present in person or represented by proxy at the meeting and the
validity of proxies and ballots; count all votes and ballots and
report the results; determine and retain for a reasonable period a
record of the disposition of any challenges made to any
determination by the inspectors; and certify their determination of
the number of shares represented at the meeting and their count of
all votes and ballots. No person who is a candidate for an office
at an election may serve as an inspector at such election. Each
report of an inspector shall be in writing and signed by the
inspector or by a majority of them if there is 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.
Section
2.6 Adjournments. Any
meeting of stockholders, annual or special, may be adjourned by the
chairman of the meeting, from time to time, whether or not there is
a quorum, to reconvene at the same or some other place. Notice need
not be given of any such adjourned meeting if the date, time, and
place, if any, thereof, and the means of remote communication, if
any, by which stockholders and proxy holders may be deemed to be
present in person and vote at such adjourned meeting are announced
at the meeting at which the adjournment is taken. At the adjourned
meeting the stockholders, or the holders of any class or series of
stock entitled to vote separately as a class, as the case may be,
may transact any business that might have been transacted at the
original meeting. If the adjournment is for more than 30 days,
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 stockholders entitled to vote is fixed for
the adjourned meeting, the Board shall fix a new record date for
notice of such adjourned meeting in accordance with Section 9.2,
and shall give notice of the adjourned meeting to each stockholder
of record entitled to vote at such adjourned meeting as of the
record date fixed for notice of such adjourned
meeting.
Section
2.7 Advance Notice for
Business.
(a) Annual Meetings of
Stockholders. No business may be transacted at an annual meeting of
stockholders, other than business that is either (i) specified
in the Corporation’s notice of meeting (or any supplement
thereto) given by or at the direction of the Board,
(ii) otherwise properly brought before the annual meeting by
or at the direction of the Board or (iii) otherwise properly
brought before the annual meeting by any stockholder of the
Corporation (x) who is a stockholder of record entitled to
vote at such annual meeting on the date of the giving of the notice
provided for in this Section 2.7(a) and on the record date for the
determination of stockholders entitled to vote at such annual
meeting and (y) who complies with the notice procedures set
forth in this Section 2.7(a). Notwithstanding anything in this
Section 2.7(a) to the contrary, only persons nominated for election
as a director to fill any term of a directorship that expires on
the date of the annual meeting pursuant to Section 3.2 will be
considered for election at such meeting.
(i) In addition to any
other applicable requirements, for business (other than
nominations) to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary and such business must
otherwise be a proper matter for stockholder action. Subject to
Section 2.7(a)(iii), a stockholder’s notice to the Secretary
with respect to such business, to be timely, must be received by
the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 90th day nor earlier
than the opening of business on the 120th day before the
anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within 30 days before or
after such anniversary date, notice by the stockholder to be timely
must be so received not earlier than the opening of business on the
120th day before the meeting and not later than the later of (x)
the close of business on the 90th day before the meeting or (y) the
close of business on the 10th day following the day on which public
announcement of the date of the annual meeting is first made by the
Corporation. The public announcement of an adjournment of an annual
meeting shall not commence a new time period for the giving of a
stockholder’s notice as described in this Section
2.7(a).
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(ii) To
be in proper written form, a stockholder’s notice to the
Secretary with respect to any business (other than nominations)
must set forth as to each such matter such stockholder proposes to
bring before the annual meeting (A) a brief description of the
business desired to be brought before the annual meeting, the text
of the proposal or business (including the text of any resolutions
proposed for consideration and in the event such business includes
a proposal to amend these By Laws, the language of the proposed
amendment) and the reasons for conducting such business at the
annual meeting, (B) the name and record address of such stockholder
and the name and address of the beneficial owner, if any, on whose
behalf the proposal is made, (C) the class or series and number of
shares of capital stock of the Corporation that are owned
beneficially and of record by such stockholder and by the
beneficial owner, if any, on whose behalf the proposal is made, (D)
a description of all arrangements or understandings between such
stockholder and the beneficial owner, if any, on whose behalf the
proposal is made and any other person or persons (including their
names) in connection with the proposal of such business by such
stockholder, (E) any material interest of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made in
such business and (F) a representation that such stockholder (or a
qualified representative of such stockholder) intends to appear in
person or by proxy at the annual meeting to bring such business
before the meeting.
(iii) The
foregoing notice requirements of this Section 2.7(a) shall be
deemed satisfied by a stockholder as to any proposal (other than
nominations) if the stockholder has notified the Corporation of
such stockholder’s intention to present such proposal at an
annual meeting in compliance with Rule 14a-8 (or any successor
thereof) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and such stockholder has complied with
the requirements of such rule for inclusion of such proposal in a
proxy statement prepared by the Corporation to solicit proxies for
such annual meeting. No business shall be conducted at the annual
meeting of stockholders except business brought before the annual
meeting in accordance with the procedures set forth in this Section
2.7(a), provided, however, that once business has been properly
brought before the annual meeting in accordance with such
procedures, nothing in this Section 2.7(a) shall be deemed to
preclude discussion by any stockholder of any such business. If the
Board or the chairman of the annual meeting determines that any
stockholder proposal was not made in accordance with the provisions
of this Section 2.7(a) or that the information provided in a
stockholder’s notice does not satisfy the information
requirements of this Section 2.7(a), such proposal shall not be
presented for action at the annual meeting. Notwithstanding the
foregoing provisions of this Section 2.7(a), if the stockholder (or
a qualified representative of the stockholder) does not appear at
the annual meeting of stockholders of the Corporation to present
the proposed business, such proposed business shall not be
transacted, notwithstanding that proxies in respect of such matter
may have been received by the Corporation.
(iv) In
addition to the provisions of this Section 2.7(a), a stockholder
shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in this Section 2.7(a) shall be
deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporation’s proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
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(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 may be made at a
special meeting of stockholders at which directors are to be
elected pursuant to the Corporation’s notice of meeting only
pursuant to Section 3.2.
(c) Public
Announcement. For purposes of these By Laws, “public
announcement” shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission
pursuant to Sections 13, 14 or 15(d) of the Exchange Act (or any
successor thereto).
Section
2.8 Conduct of
Meetings. The chairman of each annual and special meeting of
stockholders shall be the Chairman of the Board or, in the absence
(or inability or refusal to act) of the Chairman of the Board, the
Chief Executive Officer (if he or she shall be a director) or, in
the absence (or inability or refusal to act of the Chief Executive
Officer or if the Chief Executive Officer is not a director, the
President (if he or she shall be a director) or, in the absence (or
inability or refusal to act) of the President or if the President
is not a director, such other person as shall be appointed by the
Board. 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 chairman of the
meeting. The Board may adopt such rules and regulations for the
conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with these By Laws
or such rules and regulations as adopted by the Board, the chairman
of any meeting of stockholders shall have the right and authority
to convene and to adjourn the meeting, to prescribe such rules,
regulations and procedures and to do all such acts as, in the
judgment of such chairman, are appropriate for the proper conduct
of the meeting. Such rules, regulations or procedures, whether
adopted by the Board or prescribed by the chairman of the meeting,
may include, without limitation, the following: (a) the
establishment of an agenda or order of business for the meeting;
(b) rules and procedures for maintaining order at the meeting and
the safety of those present; (c) limitations on attendance at or
participation in the meeting to stockholders of record of the
Corporation, their duly authorized and constituted proxies or such
other persons as the chairman of the meeting shall determine; (d)
restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (e) limitations on the time allotted to
questions or comments by participants. Unless and to the extent
determined by the Board or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with
the rules of parliamentary procedure. The secretary of each annual
and special meeting of stockholders shall be the Secretary or, in
the absence (or inability or refusal to act) of the Secretary, an
Assistant Secretary so appointed to act by the chairman of the
meeting. In the absence (or inability or refusal to act) of the
Secretary and all Assistant Secretaries, the chairman of the
meeting may appoint any person to act as secretary of the
meeting.
ARTICLE
III.
DIRECTORS
Section
3.1 Powers and Number.
The business and affairs of the Corporation shall be managed by or
under the direction of the Board, which may exercise all such
powers of the Corporation and do all such lawful acts and things as
are not by statute or by the Certificate of Incorporation or by
these By Laws required to be exercised or done by the stockholders.
Directors need not be stockholders or residents of the State of
Delaware. 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 seven (7).
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.
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Section
3.2 Advance Notice for
Nomination of Directors.
(a) Only persons who
are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation, except as
may be otherwise provided by the terms of one or more series of
Preferred Stock with respect to the rights of holders of one or
more series of Preferred Stock to elect directors. Nominations of
persons for election to the Board at any annual meeting of
stockholders, or at any special meeting of stockholders called for
the purpose of electing directors as set forth in the
Corporation’s notice of such special meeting, may be made (i)
by or at the direction of the Board or (ii) by any stockholder of
the Corporation (x) who is a stockholder of record entitled to vote
in the election of directors on the date of the giving of the
notice provided for in this Section 3.2 and on the record date for
the determination of stockholders entitled to vote at such meeting
and (y) who complies with the notice procedures set forth in this
Section 3.2.
(b) In addition to any
other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary. To be timely, a
stockholder’s notice to the Secretary must be received by the
Secretary at the principal executive offices of the Corporation
(i) in the case of an annual meeting, not later than the close
of business on the 90th day nor earlier than the opening of
business on the 120th day before the anniversary date of the
immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a
date that is not within 30 days before or after such anniversary
date, notice by the stockholder to be timely must be so received
not earlier than the opening of business on the 120th day before
the meeting and not later than the later of (x) the close of
business on the 90th day before the meeting or (y) the close
of business on the 10th day following the day on which public
announcement of the date of the annual meeting was first made by
the Corporation; and (ii) in the case of a special meeting of
stockholders called for the purpose of electing directors, not
later than the close of business on the 10th day following the day
on which public announcement of the date of the special meeting is
first made by the Corporation. In no event shall the public
announcement of an adjournment or postponement of an annual meeting
or special meeting commence a new time period (or extend any time
period) for the giving of a stockholder’s notice as described
in this Section 3.2.
(c) Notwithstanding
anything in paragraph (b) to the contrary, in the event that the
number of directors to be elected to the Board at an annual meeting
is greater than the number of directors whose terms expire on the
date of the annual meeting and there is no public announcement by
the Corporation naming all of the nominees for the additional
directors to be elected or specifying the size of the increased
Board before the close of business on the 90th day prior to the
anniversary date of the immediately preceding annual meeting of
stockholders, a stockholder’s notice required by this Section
3.2 shall also be considered timely, but only with respect to
nominees for the additional directorships created by such increase
that are to be filled by election at such annual meeting, if it
shall be received by the Secretary at the principal executive
offices of the Corporation not later than the close of business on
the 10th day following the date on which such public announcement
was first made by the Corporation.
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(d) To be in proper
written form, a stockholder’s notice to the Secretary must
set forth (i) as to each person whom the stockholder proposes to
nominate for election as a director (A) the name, age, business
address and residence address of the person, (B) the principal
occupation or employment of the person, (C) the class or series and
number of shares of capital stock of the Corporation that are owned
beneficially or of record by the person and (D) any other
information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder; and (ii) as to the
stockholder giving the notice (A) the name and record address of
such stockholder as they appear on the Corporation’s books
and the name and address of the beneficial owner, if any, on whose
behalf the nomination is made, (B) the class or series and number
of shares of capital stock of the Corporation that are owned
beneficially and of record by such stockholder and the beneficial
owner, if any, on whose behalf the nomination is made, (C) a
description of all arrangements or understandings relating to the
nomination to be made by such stockholder among such stockholder,
the beneficial owner, if any, on whose behalf the nomination is
made, each proposed nominee and any other person or persons
(including their names), (D) a representation that such stockholder
(or a qualified representative of such stockholder) intends to
appear in person or by proxy at the meeting to nominate the persons
named in its notice and (E) any other information relating to such
stockholder and the beneficial owner, if any, on whose behalf the
nomination is made that would be required to be disclosed in a
proxy statement or other filings required to be made in connection
with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected.
(e) If the Board or the
chairman of the meeting of stockholders determines that any
nomination was not made in accordance with the provisions of this
Section 3.2, or that the information provided in a
stockholder’s notice does not satisfy the information
requirements of this Section 3.2, then such nomination shall not be
considered at the meeting in question. Notwithstanding the
foregoing provisions of this Section 3.2, if the stockholder (or a
qualified representative of the stockholder) does not appear at the
meeting of stockholders of the Corporation to present the
nomination, such nomination shall be disregarded, notwithstanding
that proxies in respect of such nomination may have been received
by the Corporation.
(f) In addition to the
provisions of this Section 3.2, a stockholder shall also comply
with all of the applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set
forth herein. Nothing in this Section 3.2 shall be deemed to affect
any rights of the holders of Preferred Stock to elect directors
pursuant to the Certificate of Incorporation.
Section
3.3 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
3.4 Compensation.
Unless otherwise restricted by the Certificate of Incorporation or
these By Laws, the Board shall have the authority to fix the
compensation of directors. The directors may be reimbursed their
expenses, if any, of attendance at each meeting of the Board,
including for service on a committee of the Board, and may be paid
either a fixed sum for attendance at each meeting of the Board or
other compensation as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of committees of the Board
may be allowed like compensation and reimbursement of expenses for
service on the committee.
8
ARTICLE
IV.
BOARD
MEETINGS
Section
4.1 Annual Meetings.
The Board shall meet as soon as practicable after the adjournment
of each annual stockholders meeting at the place of the annual
stockholders meeting unless the Board shall fix another time and
place and give notice thereof in the manner required herein for
special meetings of the Board. No notice to the directors shall be
necessary to legally convene this meeting, except as provided in
this Section 4.1.
Section
4.2 Regular Meetings.
Regularly scheduled, periodic meetings of the Board may be held
without notice at such times, dates and places (within or without
the State of Delaware) as shall from time to time be determined by
the Board.
Section
4.3 Special Meetings.
Special meetings of the Board (a) may be called by the Chairman of
the Board or President and (b) shall be called by the Chairman of
the Board, President or Secretary on the written request of at
least a majority of directors then in office, or the sole director,
as the case may be, and shall be held at such time, date and place
(within or without the State of Delaware) as may be determined by
the person calling the meeting or, if called upon the request of
directors or the sole director, as specified in such written
request. Notice of each special meeting of the Board shall be
given, as provided in Section 9.3, to each director (i) at
least 24 hours before the meeting if such notice is oral notice
given personally or by telephone or written notice given by hand
delivery or by means of a form of electronic transmission and
delivery; (ii) at least two days before the meeting if such
notice is sent by a nationally recognized overnight delivery
service; and (iii) at least five days before the meeting if
such notice is sent through the United States mail. If the
Secretary shall fail or refuse to give such notice, then the notice
may be given by the officer who called the meeting or the directors
who requested the meeting. Any and all business that may be
transacted at a regular meeting of the Board may be transacted at a
special meeting. Except as may be otherwise expressly provided by
applicable law, the Certificate of Incorporation, or these By Laws,
neither the business to be transacted at, nor the purpose of, any
special meeting need be specified in the notice or waiver of notice
of such meeting. A special meeting may be held at any time without
notice if all the directors are present or if those not present
waive notice of the meeting in accordance with Section
9.4.
Section
4.4 Quorum; Required
Vote. A majority of the Board shall constitute a quorum for the
transaction of business at any meeting of the Board, and the act of
a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board, except as may be
otherwise specifically provided by applicable law, the Certificate
of Incorporation or these By Laws. If a quorum shall not be present
at any meeting, a majority of the directors present may adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present.
Section
4.5 Consent In Lieu of
Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these By Laws, any action required or permitted to
be taken at any meeting of the Board or any committee thereof may
be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing or by
electronic transmission, and the writing or writings or electronic
transmission or transmissions (or paper reproductions thereof) are
filed with the minutes of proceedings of the Board or committee.
Such filing shall be in paper form if the minutes are maintained in
paper form and shall be in electronic form if the minutes are
maintained in electronic form.
Section
4.6 Organization. The
chairman of each meeting of the Board shall be the Chairman of the
Board or, in the absence (or inability or refusal to act) of the
Chairman of the Board, the Chief Executive Officer (if he or she
shall be a director) or, in the absence (or inability or refusal to
act) of the Chief Executive Officer or if the Chief Executive
Officer is not a director, the President (if he or she shall be a
director) or in the absence (or inability or refusal to act) of the
President or if the President is not a director, a chairman elected
from the directors present. The Secretary shall act as secretary of
all meetings of the Board. In the absence (or inability or refusal
to act) of the Secretary, an Assistant Secretary shall perform the
duties of the Secretary at such meeting. In the absence (or
inability or refusal to act) of the Secretary and all Assistant
Secretaries, the chairman of the meeting may appoint any person to
act as secretary of the meeting.
9
ARTICLE
V.
COMMITTEES
OF DIRECTORS
Section
5.1 Establishment. The
Board may by resolution passed by a majority of the Board designate
one or more committees, each committee to consist of one or more of
the directors of the Corporation. Each committee shall keep regular
minutes of its meetings and report the same to the Board when
required. The Board shall have the power at any time to fill
vacancies in, to change the membership of, or to dissolve any such
committee.
Section
5.2 Available Powers.
Any committee established pursuant to Section 5.1 hereof, to the
extent permitted by applicable law and by resolution of the Board,
shall have and may exercise all of the powers and authority of the
Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers that may require it.
Section
5.3 Alternate Members.
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 such 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 to act at the
meeting in place of any such absent or disqualified
member.
Section
5.4 Procedures. Unless
the Board otherwise provides, the time, date, place, if any, and
notice of meetings of a committee shall be determined by such
committee. At meetings of a committee, a majority of the number of
members of the committee (but not including any alternate member,
unless such alternate member has replaced any absent or
disqualified member at the time of, or in connection with, such
meeting) shall constitute a quorum for the transaction of business.
The act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the committee, except
as otherwise specifically provided by applicable law, the
Certificate of Incorporation, these By Laws or the Board. If a
quorum is not present at a meeting of a committee, the members
present may adjourn the meeting from time to time, without notice
other than an announcement at the meeting, until a quorum is
present. Unless the Board otherwise provides and except as provided
in these By Laws, each committee designated by the Board may make,
alter, amend 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 is authorized to conduct its
business pursuant to Article III and Article IV of these By
Laws.
ARTICLE
VI.
OFFICERS
Section
6.1 Officers. The
officers of the Corporation elected by the Board shall be a
Chairman of the Board, a Chief Executive Officer, a President, a
Chief Financial Officer, a Secretary and such other officers
(including without limitation, Vice Presidents, Assistant
Secretaries and a Treasurer) as the Board from time to time may
determine. Officers elected by the Board shall each have such
powers and duties as generally pertain to their respective offices,
subject to the specific provisions of this Article VI. Such
officers shall also have such powers and duties as from time to
time may be conferred by the Board. The Chief Executive Officer or
President may also appoint such other officers (including without
limitation one or more Vice Presidents and Controllers) as may be
necessary or desirable for the conduct of the business of the
Corporation. Such other officers shall have such powers and duties
and shall hold their offices for such terms as may be provided in
these By Laws or as may be prescribed by the Board or, if such
officer has been appointed by the Chief Executive Officer or
President, as may be prescribed by the appointing
officer.
10
(a) Chairman of the
Board. The Chairman of the Board shall preside when present at all
meetings of the stockholders and the Board. The Chairman of the
Board shall have general supervision and control of the acquisition
activities of the Corporation subject to the ultimate authority of
the Board, and shall be responsible for the execution of the
policies of the Board with respect to such matters. In the absence
(or inability or refusal to act) of the Chairman of the Board, the
Chief Executive Officer (if he or she shall be a director) shall
preside when present at all meetings of the stockholders and the
Board. The powers and duties of the Chairman of the Board shall not
include supervision or control of the preparation of the financial
statements of the Corporation (other than through participation as
a member of the Board). The position of Chairman of the Board and
Chief Executive Officer may be held by the same
person.
(b) Chief Executive
Officer. The Chief Executive Officer shall be the chief executive
officer of the Corporation, shall have general supervision of the
affairs of the Corporation and general control of all of its
business subject to the ultimate authority of the Board, and shall
be responsible for the execution of the policies of the Board with
respect to such matters, except to the extent any such powers and
duties have been prescribed to the Chairman of the Board pursuant
to Section 6.1(a) above. In the absence (or inability or refusal to
act) of the Chairman of the Board, the Chief Executive Officer (if
he or she shall be a director) shall preside when present at all
meetings of the stockholders and the Board. The position of Chief
Executive Officer and President may be held by the same
person.
(c) President. The
President shall make recommendations to the Chief Executive Officer
on all operational matters that would normally be reserved for the
final executive responsibility of the Chief Executive Officer. In
the absence (or inability or refusal to act) of the Chairman of the
Board and Chief Executive Officer, the President (if he or she
shall be a director) shall preside when present at all meetings of
the stockholders and the Board. The President shall also perform
such duties and have such powers as shall be designated by the
Board. The position of President and Chief Executive Officer may be
held by the same person.
(d) Vice Presidents. In
the absence (or inability or refusal to act) of the President, the
Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the
Board) shall perform the duties and have the powers of the
President. Any one or more of the Vice Presidents may be given an
additional designation of rank or function.
(e) Secretary.
(i) The Secretary shall
attend all meetings of the stockholders, the Board and (as
required) committees of the Board and shall record the proceedings
of such meetings in books to be kept for that purpose. The
Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board and shall
perform such other duties as may be prescribed by the Board, the
Chairman of the Board, Chief Executive Officer or President. The
Secretary shall have custody of the corporate seal of the
Corporation and the Secretary, or any Assistant Secretary, shall
have authority to affix the same to any instrument requiring it,
and when so affixed, it may be attested by his or her signature or
by the signature of such Assistant Secretary. The Board may give
general authority to any other officer to affix the seal of the
Corporation and to attest the affixing thereof by his or her
signature.
11
(ii) The
Secretary shall keep, or cause to be kept, at the principal
executive office of the Corporation or at the office of the
Corporation’s transfer agent or registrar, if one has been
appointed, a stock ledger, or duplicate stock ledger, showing the
names of the stockholders and their addresses, the number and
classes of shares held by each and, with respect to certificated
shares, the number and date of certificates issued for the same and
the number and date of certificates cancelled.
(f) Assistant
Secretaries. The Assistant Secretary or, if there be more than one,
the Assistant Secretaries in the order determined by the Board
shall, in the absence (or inability or refusal to act) of the
Secretary, perform the duties and have the powers of the
Secretary.
(g) Chief Financial
Officer. The Chief Financial Officer shall perform all duties
commonly incident to that office (including, without limitation,
the care and custody of the funds and securities of the
Corporation, which from time to time may come into the Chief
Financial Officer’s hands and the deposit of the funds of the
Corporation in such banks or trust companies as the Board, the
Chief Executive Officer or the President may
authorize).
(h) Treasurer. The
Treasurer shall, in the absence (or inability or refusal to act) of
the Chief Financial Officer, perform the duties and exercise the
powers of the Chief Financial Officer.
Section
6.2 Term of Office;
Removal; Vacancies. The elected officers of the Corporation shall
be appointed by the Board and shall hold office until their
successors are duly elected and qualified by the Board or until
their earlier death, resignation, retirement, disqualification, or
removal from office. Any officer may be removed, with or without
cause, at any time by the Board. Any officer appointed by the Chief
Executive Officer or President may also be removed, with or without
cause, by the Chief Executive Officer or President, as the case may
be, unless the Board otherwise provides. Any vacancy occurring in
any elected office of the Corporation may be filled by the Board.
Any vacancy occurring in any office appointed by the Chief
Executive Officer or President may be filled by the Chief Executive
Officer, or President, as the case may be, unless the Board then
determines that such office shall thereupon be elected by the
Board, in which case the Board shall elect such
officer.
Section
6.3 Other Officers. The
Board may delegate the power to appoint such other officers and
agents, and may also remove such officers and agents or delegate
the power to remove same, as it shall from time to time deem
necessary or desirable.
Section
6.4 Multiple
Officeholders; Stockholder and Director Officers. Any number of
offices may be held by the same person unless the Certificate of
Incorporation or these By Laws otherwise provide. Officers need not
be stockholders or residents of the State of Delaware.
ARTICLE
VII.
SHARES
Section
7.1 Certificated and
Uncertificated Shares. The shares of the Corporation may be
certificated or uncertificated, subject to the sole discretion of
the Board and the requirements of the DGCL.
Section
7.2 Multiple Classes of
Stock. If the Corporation shall be authorized to issue more than
one class of stock or more than one series of any class, the
Corporation shall (a) cause the powers, designations, preferences
and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights to be
set forth in full or summarized on the face or back of any
certificate that the Corporation issues to represent shares of such
class or series of stock or (b) in the case of uncertificated
shares, within a reasonable time after the issuance or transfer of
such shares, send to the registered owner thereof a written notice
containing the information required to be set forth on certificates
as specified in clause (a) above; provided, however, that, except
as otherwise provided by applicable law, in lieu of the foregoing
requirements, there may be set forth on the face or back of such
certificate or, in the case of uncertificated shares, on such
written notice a statement that the Corporation will furnish
without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences
or rights.
12
Section
7.3 Signatures. Each
certificate representing capital stock of the Corporation shall be
signed by or in the name of the Corporation by (a) the Chairman of
the Board, Chief Executive Officer, the President or a Vice
President and (b) the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Corporation. Any 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, such certificate may be issued by the
Corporation with the same effect as if such person were such
officer, transfer agent or registrar on the date of
issue.
Section
7.4 Consideration and
Payment for Shares.
(a) Subject to
applicable law and the Certificate of Incorporation, shares of
stock may be issued for such consideration, having in the case of
shares with par value a value not less than the par value thereof,
and to such persons, as determined from time to time by the Board.
The consideration may consist of any tangible or intangible
property or any benefit to the Corporation including cash,
promissory notes, services performed, contracts for services to be
performed or other securities, or any combination
thereof.
(b) Subject to
applicable law and the Certificate of Incorporation, shares may not
be issued until the full amount of the consideration has been paid,
unless upon the face or back of each certificate issued to
represent any partly paid shares of capital stock or upon the books
and records of the Corporation in the case of partly paid
uncertificated shares, there shall have been set forth the total
amount of the consideration to be paid therefor and the amount paid
thereon up to and including the time said certificate representing
certificated shares or said uncertificated shares are
issued.
Section
7.5 Lost, Destroyed or
Wrongfully Taken Certificates.
(a) If an owner of a
certificate representing shares claims that such certificate has
been lost, destroyed or wrongfully taken, the Corporation shall
issue a new certificate representing such shares or such shares in
uncertificated form if the owner: (i) requests such a new
certificate before the Corporation has notice that the certificate
representing such shares has been acquired by a protected
purchaser; (ii) if requested by the Corporation, delivers to the
Corporation a bond sufficient to indemnify the Corporation against
any claim that may be made against the Corporation on account of
the alleged loss, wrongful taking or destruction of such
certificate or the issuance of such new certificate or
uncertificated shares; and (iii) satisfies other reasonable
requirements imposed by the Corporation.
(b) If a certificate
representing shares has been lost, apparently destroyed or
wrongfully taken, and the owner fails to notify the Corporation of
that fact within a reasonable time after the owner has notice of
such loss, apparent destruction or wrongful taking and the
Corporation registers a transfer of such shares before receiving
notification, the owner shall be precluded from asserting against
the Corporation any claim for registering such transfer or a claim
to a new certificate representing such shares or such shares in
uncertificated form.
13
Section
7.6 Transfer of
Stock.
(a) If a certificate
representing shares of the Corporation is presented to the
Corporation with an endorsement requesting the registration of
transfer of such shares or an instruction is presented to the
Corporation requesting the registration of transfer of
uncertificated shares, the Corporation shall register the transfer
as requested if:
(i) in the case of
certificated shares, the certificate representing such shares has
been surrendered;
(ii) (A)
with respect to certificated shares, the endorsement is made by the
person specified by the certificate as entitled to such shares; (B)
with respect to uncertificated shares, an instruction is made by
the registered owner of such uncertificated shares; or (C) with
respect to certificated shares or uncertificated shares, the
endorsement or instruction is made by any other appropriate person
or by an agent who has actual authority to act on behalf of the
appropriate person;
(iii) the
Corporation has received a guarantee of signature of the person
signing such endorsement or instruction or such other reasonable
assurance that the endorsement or instruction is genuine and
authorized as the Corporation may request;
(iv) the
transfer does not violate any restriction on transfer imposed by
the Corporation that is enforceable in accordance with Section
7.8(a); and
(v) such other
conditions for such transfer as shall be provided for under
applicable law have been satisfied.
(b) Whenever any
transfer of shares shall be made for collateral security and not
absolutely, the Corporation shall so record such fact in the entry
of transfer if, when the certificate for such shares is presented
to the Corporation for transfer or, if such shares are
uncertificated, when the instruction for registration of transfer
thereof is presented to the Corporation, both the transferor and
transferee request the Corporation to do so.
Section
7.7 Registered
Stockholders. Before due presentment for registration of transfer
of a certificate representing shares of the Corporation or of an
instruction requesting registration of transfer of uncertificated
shares, the Corporation may treat the registered owner as the
person exclusively entitled to inspect for any proper purpose the
stock ledger and the other books and records of the Corporation,
vote such shares, receive dividends or notifications with respect
to such shares and otherwise exercise all the rights and powers of
the owner of such shares, except that a person who is the
beneficial owner of such shares (if held in a voting trust or by a
nominee on behalf of such person) may, upon providing documentary
evidence of beneficial ownership of such shares and satisfying such
other conditions as are provided under applicable law, may also so
inspect the books and records of the Corporation.
Section
7.8 Effect of the
Corporation’s Restriction on Transfer.
(a) A written
restriction on the transfer or registration of transfer of shares
of the Corporation or on the amount of shares of the Corporation
that may be owned by any person or group of persons, if permitted
by the DGCL and noted conspicuously on the certificate representing
such shares or, in the case of uncertificated shares, contained in
a notice, offering circular or prospectus sent by the Corporation
to the registered owner of such shares within a reasonable time
prior to or after the issuance or transfer of such shares, may be
enforced against the holder of such shares or any successor or
transferee of the holder including an executor, administrator,
trustee, guardian or other fiduciary entrusted with like
responsibility for the person or estate of the holder.
14
(b) A restriction
imposed by the Corporation on the transfer or the registration of
shares of the Corporation or on the amount of shares of the
Corporation that may be owned by any person or group of persons,
even if otherwise lawful, is ineffective against a person without
actual knowledge of such restriction unless: (i) the shares are
certificated and such restriction is noted conspicuously on the
certificate; or (ii) the shares are uncertificated and such
restriction was contained in a notice, offering circular or
prospectus sent by the Corporation to the registered owner of such
shares prior to or within a reasonable time after the issuance or
transfer of such shares.
Section
7.9 Regulations. The
Board shall have power and authority to make such additional rules
and regulations, subject to any applicable requirement of law, as
the Board may deem necessary and appropriate with respect to the
issue, transfer or registration of transfer of shares of stock or
certificates representing shares. The Board may appoint one or more
transfer agents or registrars and may require for the validity
thereof that certificates representing shares bear the signature of
any transfer agent or registrar so appointed.
ARTICLE
VIII.
INDEMNIFICATION
Section
8.1 Right to
Indemnification. To the fullest extent permitted by applicable law,
as the same exists or may hereafter be amended, the Corporation
shall indemnify and hold harmless each person who was or is made a
party or is threatened to be made a party to or is otherwise
involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (hereinafter a “proceeding”), by reason
of the fact that he or she 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, other enterprise or nonprofit
entity, including service with respect to an employee benefit plan
(hereinafter an “Indemnitee”), whether the basis of
such proceeding is alleged action in an official capacity as a
director, officer, employee or agent, or in any other capacity
while serving as a director, officer, employee or agent, against
all liability and loss suffered and expenses (including, without
limitation, attorneys’ fees, judgments, fines, ERISA excise
taxes and penalties and amounts paid in settlement) reasonably
incurred by such Indemnitee in connection with such proceeding;
provided, however, that, except as provided in Section 8.3 with
respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify an Indemnitee in connection with a
proceeding (or part thereof) initiated by such Indemnitee only if
such proceeding (or part thereof) was authorized by the
Board.
Section
8.2 Right to
Advancement of Expenses. In addition to the right to
indemnification conferred in Section 8.1, an Indemnitee shall also
have the right to be paid by the Corporation to the fullest extent
not prohibited by applicable law the expenses (including, without
limitation, attorneys’ fees) incurred in defending or
otherwise participating in any such proceeding in advance of its
final disposition (hereinafter an “advancement of
expenses”); provided, however, that, if the DGCL requires, an
advancement of expenses incurred by an Indemnitee in his or her
capacity as a director or officer of the Corporation (and not in
any other capacity in which service was or is rendered by such
Indemnitee, including, without limitation, service to an employee
benefit plan) shall be made only upon the Corporation’s
receipt of an undertaking (hereinafter an
“undertaking”), by or on behalf of such Indemnitee, to
repay all amounts so advanced if it shall ultimately be determined
that such Indemnitee is not entitled to be indemnified under this
Article VIII or otherwise.
15
Section
8.3 Right of Indemnitee
to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not
paid in full by the Corporation within 60 days after a written
claim therefor has been received by the Corporation, except in the
case of a claim for an advancement of expenses, in which case the
applicable period shall be 20 days, the Indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking,
the Indemnitee shall also be entitled to be paid the expense of
prosecuting or defending such suit. In (a) any suit brought by the
Indemnitee to enforce a right to indemnification hereunder (but not
in a suit brought by an Indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (b) in any
suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a final judicial
decision from which there is no further right to appeal
(hereinafter a “final adjudication”) that, the
Indemnitee has not met any applicable standard for indemnification
set forth in the DGCL. Neither the failure of the Corporation
(including its directors who are not parties to such action, a
committee of such directors, independent legal counsel, or its
stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the Indemnitee is
proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the DGCL, nor an actual
determination by the Corporation (including a determination by its
directors who are not parties to such action, a committee of such
directors, independent legal counsel, or its stockholders) that the
Indemnitee has not met such applicable standard of conduct, shall
create a presumption that the Indemnitee has not met the applicable
standard of conduct or, in the case of such a suit brought by the
Indemnitee, shall be a defense to such suit. In any suit brought by
the Indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking,
the burden of proving that the Indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Article
VIII or otherwise shall be on the Corporation.
Section
8.4 Non-Exclusivity of
Rights. The rights provided to any Indemnitee pursuant to this
Article VIII shall not be exclusive of any other right, which such
Indemnitee may have or hereafter acquire under applicable law, the
Certificate of Incorporation, these By Laws, an agreement, a vote
of stockholders or disinterested directors, or
otherwise.
Section
8.5 Insurance. The
Corporation may maintain insurance, at its expense, to protect
itself and/or any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the
DGCL.
Section
8.6 Indemnification of
Other Persons. This Article VIII shall not limit the right of the
Corporation to the extent and in the manner authorized or permitted
by law to indemnify and to advance expenses to persons other than
Indemnitees. Without limiting the foregoing, the Corporation may,
to the extent authorized from time to time by the Board, grant
rights to indemnification and to the advancement of expenses to any
employee or agent of the Corporation and to any other person who 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 or other enterprise, including
service with respect to an employee benefit plan, to the fullest
extent of the provisions of this Article VIII with respect to the
indemnification and advancement of expenses of Indemnitees under
this Article VIII.
16
Section
8.7 Amendments. Any
repeal or amendment of this Article VIII by the Board or the
stockholders of the Corporation or by changes in applicable law, or
the adoption of any other provision of these By Laws inconsistent
with this Article VIII, will, to the extent permitted by applicable
law, be prospective only (except to the extent such amendment or
change in applicable law permits the Corporation to provide broader
indemnification rights to Indemnitees on a retroactive basis than
permitted prior thereto), and will not in any way diminish or
adversely affect any right or protection existing hereunder in
respect of any act or omission occurring prior to such repeal or
amendment or adoption of such inconsistent provision; provided
however, that amendments or repeals of this Article VIII shall
require the affirmative vote of the stockholders holding at least
66.7% of the voting power of all outstanding shares of capital
stock of the Corporation.
Section
8.8 Certain
Definitions. For purposes of this Article VIII, (a) references to
“other enterprise” shall include any employee benefit
plan; (b) references to “fines” shall include any
excise taxes assessed on a person with respect to an employee
benefit plan; (c) references to “serving at the request of
the Corporation” shall include any service that imposes
duties on, or involves services by, a person with respect to any
employee benefit plan, its participants, or beneficiaries; and (d)
a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best interest of the
Corporation” for purposes of Section 145 of the
DGCL.
Section
8.9 Contract Rights.
The rights provided to Indemnitees pursuant to this Article VIII
shall be contract rights and such rights shall continue as to an
Indemnitee who has ceased to be a director, officer, agent or
employee and shall inure to the benefit of the Indemnitee’s
heirs, executors and administrators.
Section
8.10 Severability. If
any provision or provisions of this Article VIII shall be held to
be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining
provisions of this Article VIII shall not in any way be affected or
impaired thereby; and (b) to the fullest extent possible, the
provisions of this Article VIII (including, without limitation,
each such portion of this Article VIII containing any such
provision held to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
ARTICLE
IX.
MISCELLANEOUS
Section
9.1 Place of Meetings.
If the place of any meeting of stockholders, the Board or committee
of the Board for which notice is required under these By Laws is
not designated in the notice of such meeting, such meeting shall be
held at the principal business office of the Corporation; provided,
however, if the Board has, in its sole discretion, determined that
a meeting shall not be held at any place, but instead shall be held
by means of remote communication pursuant to Section 9.5 hereof,
then such meeting shall not be held at any place.
Section
9.2 Fixing Record
Dates.
(a) In order that the
Corporation may determine the stockholders entitled to notice of
any meeting of stockholders or any adjournment thereof, the Board
may fix a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted by the Board, and
which record date shall not be more than 60 nor less than 10 days
before the date of such meeting. If the Board 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 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, the record
date for determining stockholders entitled to notice of and to vote
at a meeting of stockholders shall be at the close of business on
the business day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the business
day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board may fix a new record
date for the adjourned meeting, 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 with
the foregoing provisions of this Section 9.2(a) 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 the stockholders entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date
shall be not more than 60 days prior to such action. If no record
date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which
the Board adopts the resolution relating thereto.
Section
9.3 Means of Giving
Notice.
(a) Notice to
Directors. Whenever under applicable law, the Certificate of
Incorporation or these By Laws notice is required to be given to
any director, such notice shall be given either (i) in writing and
sent by mail, or by a nationally recognized delivery service, (ii)
by means of facsimile telecommunication or other form of electronic
transmission, or (iii) by oral notice given personally or by
telephone. A notice to a director will be deemed given as follows:
(i) if given by hand delivery, orally, or by telephone, when
actually received by the director, (ii) if sent through the United
States mail, when deposited in the United States mail, with postage
and fees thereon prepaid, addressed to the director at the
director’s address appearing on the records of the
Corporation, (iii) if sent for next day delivery by a nationally
recognized overnight delivery service, when deposited with such
service, with fees thereon prepaid, addressed to the director at
the director’s address appearing on the records of the
Corporation, (iv) if sent by facsimile telecommunication, when sent
to the facsimile transmission number for such director appearing on
the records of the Corporation, (v) if sent by electronic mail,
when sent to the electronic mail address for such director
appearing on the records of the Corporation, or (vi) if sent by any
other form of electronic transmission, when sent to the address,
location or number (as applicable) for such director appearing on
the records of the Corporation.
(b) Notice to
Stockholders. Whenever under applicable law, the Certificate of
Incorporation or these By Laws notice is required to be given to
any stockholder, such notice may be given (i) in writing and sent
either by hand delivery, through the United States mail, or by a
nationally recognized overnight delivery service for next day
delivery, or (ii) by means of a form of electronic transmission
consented to by the stockholder, to the extent permitted by, and
subject to the conditions set forth in Section 232 of the DGCL. A
notice to a stockholder shall be deemed given as follows: (i) if
given by hand delivery, when actually received by the stockholder,
(ii) if sent through the United States mail, when deposited in the
United States mail, with postage and fees thereon prepaid,
addressed to the stockholder at the stockholder’s address
appearing on the stock ledger of the Corporation, (iii) if sent for
next day delivery by a nationally recognized overnight delivery
service, when deposited with such service, with fees thereon
prepaid, addressed to the stockholder at the stockholder’s
address appearing on the stock ledger of the Corporation, and (iv)
if given by a form of electronic transmission consented to by the
stockholder to whom the notice is given and otherwise meeting the
requirements set forth above, (A) if by facsimile transmission,
when directed to a number at which the stockholder has consented to
receive notice, (B) if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to
receive notice, (C) if by a posting on an electronic network
together with separate notice to the stockholder of such specified
posting, upon the later of (1) such posting and (2) the giving of
such separate notice, and (D) if by any other form of electronic
transmission, when directed to the stockholder. A stockholder may
revoke such stockholder’s consent to receiving notice by
means of electronic communication by giving written notice of such
revocation to the Corporation. Any such consent shall be deemed
revoked if (1) the Corporation is unable to deliver by electronic
transmission two consecutive notices given by the Corporation in
accordance with such consent and (2) such inability becomes known
to the Secretary or an Assistant Secretary or to the
Corporation’s transfer agent, or other person responsible for
the giving of notice; provided, however, the inadvertent failure to
treat such inability as a revocation shall not invalidate any
meeting or other action.
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(c) Electronic
Transmission. “Electronic transmission” means any form
of communication, not directly involving the physical transmission
of paper, that creates a record that may be retained, retrieved and
reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated
process, including but not limited to transmission by telex,
facsimile telecommunication, electronic mail, telegram and
cablegram.
(d) Notice to
Stockholders Sharing Same Address. Without limiting the manner by
which notice otherwise may be given effectively by the Corporation
to stockholders, any notice to stockholders given by the
Corporation under any provision of the DGCL, the Certificate of
Incorporation or these By Laws shall be effective if given by a
single written notice to stockholders who share an address if
consented to by the stockholders at that address to whom such
notice is given. A stockholder may revoke such stockholder’s
consent by delivering written notice of such revocation to the
Corporation. Any stockholder who fails to object in writing to the
Corporation within 60 days of having been given written notice by
the Corporation of its intention to send such a single written
notice shall be deemed to have consented to receiving such single
written notice.
(e) Exceptions to
Notice Requirements. Whenever notice is required to be given, under
the DGCL, the Certificate of Incorporation or these By Laws, to any
person with whom communication is unlawful, the giving of such
notice to such person shall not be required and there shall be no
duty to apply to any governmental authority or agency for a license
or permit to give such notice to such person. Any action or meeting
that shall be taken or held without notice to any such person with
whom communication is unlawful shall have the same force and effect
as if such notice had been duly given. In the event that the action
taken by the Corporation is such as to require the filing of a
certificate with the Secretary of State of Delaware, the
certificate shall state, if such is the fact and if notice is
required, that notice was given to all persons entitled to receive
notice except such persons with whom communication is
unlawful.
Whenever
notice is required to be given by the Corporation, under any
provision of the DGCL, the Certificate of Incorporation or these By
Laws, to any stockholder to whom (1) notice of two consecutive
annual meetings of stockholders and all notices of stockholder
meetings or of the taking of action by written consent of
stockholders without a meeting to such stockholder during the
period between such two consecutive annual meetings, or (2) all,
and at least two payments (if sent by first-class mail) of
dividends or interest on securities during a 12-month period, have
been mailed addressed to such stockholder at such
stockholder’s address as shown on the records of the
Corporation and have been returned undeliverable, the giving of
such notice to such stockholder shall not be required. Any action
or meeting that shall be taken or held without notice to such
stockholder shall have the same force and effect as if such notice
had been duly given. If any such stockholder shall deliver to the
Corporation a written notice setting forth such stockholder’s
then current address, the requirement that notice be given to such
stockholder shall be reinstated. In the event that the action taken
by the Corporation is such as to require the filing of a
certificate with the Secretary of State of Delaware, the
certificate need not state that notice was not given to persons to
whom notice was not required to be given pursuant to Section 230(b)
of the DGCL. The exception in subsection (1) of the first sentence
of this paragraph to the requirement that notice be given shall not
be applicable to any notice returned as undeliverable if the notice
was given by electronic transmission.
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Section
9.4 Waiver of Notice.
Whenever any notice is required to be given under applicable law,
the Certificate of Incorporation, or these By Laws, a written
waiver of such notice, signed before or after the date of such
meeting by the person or persons entitled to said notice, or a
waiver by electronic transmission by the person entitled to said
notice, shall be deemed equivalent to such required notice. All
such waivers shall be kept with the books of the Corporation.
Attendance at a meeting shall constitute a waiver of notice of such
meeting, except where a person attends for the express purpose of
objecting to the transaction of any business on the ground that the
meeting was not lawfully called or convened.
Section
9.5 Meeting Attendance
via Remote Communication Equipment.
(a) Stockholder
Meetings. If authorized by the Board in its sole discretion, and
subject to such guidelines and procedures as the Board may adopt,
stockholders entitled to vote at such meeting and proxy holders not
physically present at a meeting of stockholders may, by means of
remote communication:
(i) participate in a
meeting of stockholders; and
(ii) be
deemed present in person and vote at a meeting of stockholders,
whether such meeting is to be held at a designated place or solely
by means of remote communication, provided that (A) the Corporation
shall implement reasonable measures to verify that each person
deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxy holder, (B) the
Corporation shall implement reasonable measures to provide such
stockholders and proxy holders a reasonable opportunity to
participate in the meeting and, if entitled to vote, to vote on
matters submitted to the applicable stockholders, including an
opportunity to read or hear the proceedings of the meeting
substantially concurrently with such proceedings, and (C) if any
stockholder or proxy holder votes or takes other action at the
meeting by means of remote communication, a record of such votes or
other action shall be maintained by the Corporation.
(b) Board Meetings.
Unless otherwise restricted by applicable law, the Certificate of
Incorporation or these By Laws, members of the Board or any
committee thereof may participate in a meeting of the Board or any
committee thereof by means of conference telephone or other
communications equipment by means of which all persons
participating in the meeting can hear each other. Such
participation in a meeting shall constitute presence in person at
the meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business
on the ground that the meeting was not lawfully called or
convened.
Section
9.6 Dividends. The
Board may from time to time declare, and the Corporation may pay,
dividends (payable in cash, property or shares of the
Corporation’s capital stock) on the Corporation’s
outstanding shares of capital stock, subject to applicable law and
the Certificate of Incorporation.
Section
9.7 Reserves. The Board
may set apart out of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and may
abolish any such reserve.
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Section
9.8 Contracts and
Negotiable Instruments. Except as otherwise provided by applicable
law, the Certificate of Incorporation or these By Laws, any
contract, bond, deed, lease, mortgage or other instrument may be
executed and delivered in the name and on behalf of the Corporation
by such officer or officers or other employee or employees of the
Corporation as the Board may from time to time authorize. Such
authority may be general or confined to specific instances as the
Board may determine. The Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, the Treasurer
or any Vice President may execute and deliver any contract, bond,
deed, lease, mortgage or other instrument in the name and on behalf
of the Corporation. Subject to any restrictions imposed by the
Board, the Chairman of the Board Chief Executive Officer,
President, the Chief Financial Officer, the Treasurer or any Vice
President may delegate powers to execute and deliver any contract,
bond, deed, lease, mortgage or other instrument in the name and on
behalf of the Corporation to other officers or employees of the
Corporation under such person’s supervision and authority, it
being understood, however, that any such delegation of power shall
not relieve such officer of responsibility with respect to the
exercise of such delegated power.
Section
9.9 Fiscal Year. The
fiscal year of the Corporation shall be fixed by the
Board.
Section
9.10 Seal. The Board may
adopt a corporate seal, which shall be in such form as the Board
determines. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise
reproduced.
Section
9.11 Books and Records.
The books and records of the Corporation may be kept within or
outside the State of Delaware at such place or places as may from
time to time be designated by the Board.
Section
9.12 Resignation. Any
director, committee member or officer may resign by giving notice
thereof in writing or by electronic transmission to the Chairman of
the Board, the Chief Executive Officer, the President or the
Secretary. The resignation shall take effect at the time specified
therein, or at the time of receipt of such notice if no time is
specified or the specified time is earlier than the time of such
receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it
effective.
Section
9.13 Surety Bonds. Such
officers, employees and agents of the Corporation (if any) as the
Chairman of the Board, Chief Executive Officer, President or the
Board may direct, from time to time, shall be bonded for the
faithful performance of their duties and for the restoration to the
Corporation, in case of their death, resignation, retirement,
disqualification or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in their
possession or under their control belonging to the Corporation, in
such amounts and by such surety companies as the Chairman of the
Board, Chief Executive Officer, President or the Board may
determine. The premiums on such bonds shall be paid by the
Corporation and the bonds so furnished shall be in the custody of
the Secretary.
Section
9.14 Securities of Other
Corporations. Powers of attorney, proxies, waivers of notice of
meeting, consents in writing and other instruments relating to
securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the Chairman of the Board,
Chief Executive Officer, President, any Vice President or any
officers authorized by the Board. Any such officer, may, in the
name of and on behalf of the Corporation, take all such action as
any such officer may deem advisable to vote in person or by proxy
at any meeting of security holders of any corporation in which the
Corporation may own securities, or to consent in writing, in the
name of the Corporation as such holder, to any action by such
corporation, and at any such meeting or with respect to any such
consent shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the
owner thereof, the Corporation might have exercised and possessed.
The Board may from time to time confer like powers upon any other
person or persons.
Section
9.15 Amendments. The
Board shall have the power to adopt, amend, alter or repeal the By
Laws. The affirmative vote of a majority of the Board shall be
required to adopt, amend, alter or repeal the By Laws. The By Laws
also may be adopted, amended, altered or repealed by the
stockholders; provided, however, that in addition to any vote of
the holders of any class or series of capital stock of the
Corporation required by applicable law or the Certificate of
Incorporation, the affirmative vote of the holders of at least a
majority of the voting power (except as otherwise provided in
Section 8.7) of all outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required for
the stockholders to adopt, amend, alter or repeal the By
Laws.
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