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8-K - CURRENT REPORT - LIGHTPATH TECHNOLOGIES INC | lpth_8k.htm |
Exhibit
3.1
SECOND AMENDED AND RESTATED BYLAWS
OF
LIGHTPATH TECHNOLOGIES, INC.
JANUARY 28, 2021
LIGHTPATH
TECHNOLOGIES, INC., a corporation organized and existing under the
General Corporation Law of the State of Delaware, hereby amends its
Amended and Restated Bylaws dated January 29, 2015, as amended by
that First Amendment to the Amended and Restated Bylaws dated
September 21, 2017 (collectively, the “Bylaws”) as
follows:
ARTICLE
1 - OFFICES
Section
1.1.
Registered Office.
The registered office of LightPath Technologies, Inc., a Delaware
corporation (the “Corporation”), shall be
in Wilmington, New Castle County,
Delaware.
Section
1.2. Other
Offices. The Corporation may also have offices at such other
places, either within or outside of the State of Delaware, as the
Board of Directors of the Corporation (the “Board of Directors”) may
from time to time determine or as the business of the Corporation
may require.
ARTICLE 2 - STOCKHOLDERS’ MEETINGS
Section
2.1. Place of Meetings. Meetings of
stockholders shall be held at such places, if any, within or
without the State of Delaware, as may from time to time be
designated by the Board of Directors, and as stated in the notice
of meeting provided in accordance with Section
2.4.
Section
2.2. Annual Meetings. Annual
meetings of the stockholders of the Corporation for the election of
directors to succeed those whose term expire and for the
transaction of such other business as may properly come before the
meeting shall be held at the place, if any, within or outside of
the State of Delaware, on the date and at the time that the Board
of Directors shall each year fix. Nominations of persons for
election to the Board of Directors and the proposal of business to
be considered by the stockholders may be made at an annual meeting
of stockholders only as provided in Section 2.14.
Section
2.3. Special
Meetings. Special meetings of the stockholders of the
Corporation for any purpose or purposes, unless otherwise provided
by law or by the certificate of incorporation of the Corporation
(the “Certificate of
Incorporation”), may be called only by the Chairman of
the Board of Directors, by the President, or by a majority of the
Board of Directors. In lieu of holding a special meeting of
stockholders at a designated place, the Board of Directors may, in
its sole discretion, determine that any special meeting of
stockholders may be held solely by means of remote communication.
Business transacted at a special meeting of stockholders shall be
confined to the purpose or purposes stated in the notice of
meeting.
Section
2.4. Notice of
Meetings.
(a) Notice
of the place, if any, date and time of all meetings of stockholders
of the Corporation, the record date for determining the
stockholders entitled to vote at the meeting (if such date is
different from the record date for stockholders entitled to notice
of the meeting) and the means of remote communications, if any, by
which stockholders and proxy holders may be deemed present and vote
at such meeting, and, in the case of all special meetings of
stockholders, the purpose or purposes of the meeting, shall be
given, not less than ten (10) nor more than sixty (60) days before
the date on which such meeting is to be held, to each stockholder
entitled to notice of the meeting.
(b) Notice
to stockholders may be given by personal delivery, mail, or, with
the consent of the stockholder entitled to receive notice, by means
of electronic transmission as provided in this Section 2.4(b). If
mailed, such notice shall be delivered by postage prepaid envelope
directed to each stockholder at such stockholder’s address as
it appears in the records of the Corporation and shall be deemed
given when deposited in the United States mail. Notice given by
electronic transmission pursuant to this Section 2.4(b) shall be
deemed given: (i) if by facsimile telecommunication, when directed
to a facsimile telecommunication number at which the stockholder
has consented to receive notice; (ii) if by electronic mail, when
directed to an electronic mail address at which the stockholder has
consented to receive notice; (iii) if by posted on an electronic
network together with separate notice to the stockholder of such
specific posting, upon the later of (A) such posting and (B) the
giving of such separate notice; and (iv) if by any other form of
electronic transmission, when directed to the stockholder. An
affidavit of the Secretary or an Assistant Secretary, or of the
transfer agent or other agent, of the Corporation that the notice
has been given by personal delivery, by mail, or by a form of
electronic transmission shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
(c) Notice
of any meeting of stockholders need not be given to any stockholder
if waived by such stockholder either before or after such meeting
is held, which waiver may either be by means of a waiver in writing
signed by such stockholder, or by electronic transmission that
either sets forth or is submitted with information from which it
can be determined that the electronic transmission was authorized
by the stockholder.
(d) The
Corporation may postpone or cancel any previously called annual or
special meeting of stockholders of the Corporation by making a
public announcement (as defined in Section 2.14(e)) of such
postponement or cancellation prior to the meeting. When a
previously called annual or special meeting is postponed to another
time, date or place, if any, notice of the place (if any), date and
time of the postponed meeting, the record date for determining the
stockholders entitled to vote at the meeting (if such date is
different from the record date for stockholders entitled to notice
of the meeting) and the means of remote communications, if any, by
which stockholders and proxy holders may be deemed present and vote
at such postponed meeting, shall be given in conformity with this
Section 2.4 unless such meeting is postponed to a date that is not
more than sixty (60) days after the date that the initial notice of
the meeting was provided in conformity with this Section
2.4.
Section
2.5. Quorum.
At any meeting of the stockholders, the holders of a majority of
the stock issued and outstanding and entitled to vote thereat,
present in person or by proxy, shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a
larger number is required by applicable law or the Certificate of
Incorporation. If a separate vote by one or more classes or series
is required, the holders of shares entitled to cast a majority of
the total votes entitled to be cast on the matter by the holders of
the shares of the class or classes or series, present in person or
represented by proxy, shall constitute a quorum entitled to take
action with respect to that vote on that matter. If, however, such
quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have the power to adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or
represented.
Section
2.6. Adjourned
Meetings; Notice. When a meeting is adjourned to another
time or place, if any, notice need not be given of the adjourned
meeting if the 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 and vote at such adjourned
meeting are announced at the meeting at which the adjournment is
taken; provided, however,
that if the adjournment is for more than thirty (30) days, a notice
of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting, or if after the adjournment
a new record date for stockholders entitled to vote is fixed for
the adjourned meeting, the Board of Directors shall fix a new
record date for notice of such adjourned meeting in conformity
herewith and such notice shall be given to each stockholder of
record entitled to vote at such adjourned meeting as of the record
date for notice of such adjourned meeting. At any adjourned
meeting, any business may be transacted that may have been
transacted at the original meeting.
Section
2.7. Organization.
The Chief Executive Officer or, in his or her absence, the
President, or, in his or her absence, the Chairman of the Board of
Directors, or, in his or her absence, the person whom the Board of
Directors designates, shall call to order any meeting of the
stockholders of the Corporation and act as chairman of the meeting.
In the absence of the Secretary or any Assistant Secretary of the
Corporation, the secretary of the meeting shall be the person the
chairman appoints.
Section
2.8. Conduct
of Business. The Board of Directors may adopt by resolution
such rules, regulations, and procedures for the conduct of any
meeting of the stockholders. Except to the extent inconsistent with
any such rules, regulations and procedures, the chairman of the
meeting shall have the right and authority to prescribe such rules,
regulations and procedures for the conduct of the meeting (which
need not be in writing) and to do all such acts and things as are
necessary or desirable for the proper conduct of the meeting,
including, without limitation, (a) the establishment of procedures
for the maintenance of order and safety, (b) limitations on the
time allotted to questions or comments on the affairs of the
Corporation, (c) restrictions on entry to such meeting after the
time prescribed for the commencement thereof, (d) the opening and
closing of the polls for each matter upon which stockholders will
vote at the meeting, (e) the establishment of an agenda or order of
business for the meeting, and (f) limitations on the attendance at
or participation in the meeting to stockholders entitled to vote at
the meeting, their duly authorized and constituted proxies or such
other persons as the chairman of the meeting shall determine. The
chairman of the meeting of stockholders, in addition to making any
other determinations that may be appropriate to the conduct of the
meeting, shall, if the facts warrant, determine and declare to the
meeting that a nomination or matter of business not properly
brought before the meeting shall not be transacted or considered.
The chairman of the meeting shall also have the right and authority
to adjourn the meeting without a vote of the stockholders, whether
there is a quorum present.
Section
2.9. Vote
Required. Except as otherwise required by the rules or
regulations of any stock exchange applicable to the Corporation or
pursuant to any law or regulation applicable to the Corporation or
its securities or by the Certificate of Incorporation or these
Bylaws, all matters other than the election of directors shall be
determined by the vote of the stockholders of a majority of the
shares having voting power present in person or represented by
proxy. All elections of directors shall be determined by a
plurality of the votes of the shares present in person or
represented by proxy and entitled to vote at the election of
directors.
Section
2.10. Voting;
Proxies. At any meeting of the stockholders every holder of
shares entitled to vote thereat shall be entitled to vote in
person, or by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than
three years prior to the meeting, unless the instrument provides
for a longer period. Each stockholder shall have one vote for each
share of stock having voting power, registered in such
stockholder’s name on the books of the Corporation, unless
the Certificate of Incorporation pertaining to such stock provides
for a greater or lesser number of votes per share.
Section
2.11. Inspectors
of Election. Prior to a meeting of the stockholders of the
Corporation, the Corporation shall appoint one or more inspectors
to act at a meeting of stockholders of the Corporation and make a
written report thereof. The Corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting may, and to the
extent required by applicable law, shall, appoint one or more
inspectors to act at the meeting. Each inspector, before beginning
the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The
inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of the duties of
inspectors. The inspectors shall have the duties prescribed by
applicable law.
Section
2.12. Action
by Written Consent. Except as otherwise provided in the
Certificate of Incorporation, stockholders may not take any action
by written consent in lieu of a meeting of
stockholders.
Section
2.13. Stockholder
Lists. A complete list of stockholders of the Corporation
entitled to vote at any meeting of stockholders of the Corporation,
arranged in alphabetical order for each class of stock and showing
the address of each such stockholder and the number of shares
registered in the name of such stockholder, shall be open to the
examination of any such stockholder, for any purpose germane to a
meeting of the stockholders of the Corporation, for a period of at
least 10 days before 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; provided, however, 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 10th day before such
meeting date. If the meeting is to be held at a place, then a list
of stockholders entitled to vote at the meeting shall be produced
and kept at the time and place of the meeting during the whole time
thereof and may be examined by any stockholder who is present. If
the meeting is to be held solely by means of remote communication,
then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably
accessible electronic network, and the information required to
access such list shall be provided with the notice of the
meeting.
Section
2.14. Advance Notice of Nominations and
Proposals of Business.
(a) Nominations
of persons for election to the Board of Directors and proposals for
other business to be transacted by the stockholders at an annual
meeting of stockholders may be made (i) pursuant to the
Corporation’s notice with respect to such meeting (or any
supplement thereto), (ii) by or at the direction of the Board of
Directors or any committee thereof or (iii) by any stockholder of
record of the Corporation who (A) was a stockholder of record at
the time of the giving of the notice contemplated in Section
2.14(b), (B) is entitled to vote at such meeting, and (C) has
complied with this Section 2.14. Subject to Section 2.14(i) and
except as otherwise required by law, clause (iii) of this Section
2.14(a) shall be the exclusive means for a stockholder to make
nominations or propose other business (other than nominations and
proposals properly brought pursuant to applicable provisions of
federal law, including the Securities Exchange Act of 1934 (as
amended from time to time, the “Exchange Act”) and the
rules and regulations of the Securities and Exchange Commission
(the “Commission”) thereunder)
before an annual meeting of stockholders.
(b) Except
as otherwise required by law, for nominations or proposals to be
properly brought before an annual meeting by a stockholder pursuant
to clause (iii) of Section 2.14(a), (i) the stockholder must have
given timely notice thereof in writing to the Secretary of the
Corporation with the information contemplated by Section 2.14(c)
including, without limitation, where applicable, delivery to the
Corporation of timely and completed questionnaires as contemplated
by Section 2.14(c), and (ii) the business must be a proper matter
for stockholder action under the General Corporation Law of the
State of Delaware (the “DGCL”). The notice
requirements of this Section 2.14 shall be deemed satisfied by a
stockholder with respect to business other than a nomination if the
stockholder has notified the Corporation of his, her or its
intention to present a proposal at an annual meeting in compliance
with applicable rules and regulations promulgated under the
Exchange Act and such stockholder’s proposal has been
included in a proxy statement prepared by the Corporation to
solicit proxies for such annual meeting.
(c) To
be timely for purposes of Section 2.14(b), a stockholder’s
notice must be delivered to the Secretary of the Corporation at the
principal executive offices of the Corporation on a date (i) not
later than the close of business on the 90th day nor earlier
than the close of business on the 120th day prior to the
anniversary date of the prior year’s annual meeting or (ii)
if there was no annual meeting in the prior year or if the date of
the current year’s annual meeting is more than 30 days before
or after the anniversary date of the prior year’s annual
meeting, on or before 10 days after the day on which the date of
the current year’s annual meeting is first disclosed in a
public announcement. In no event shall any adjournment or
postponement of an annual meeting or the announcement thereof
commence a new time period for the delivery of such notice. Such
notice from a stockholder must state (i) as to each nominee that
the stockholder proposes for election or reelection as a director,
(A) the name, age, business address and residence address of such
person, (B) the principal occupation or employment of such person,
(C) the class and number of shares, if any, of the Corporation
which are beneficially owned by such person, (D) all information
relating to such nominee that would be required to be disclosed in
solicitations of proxies for the election of such nominee as a
director pursuant to Regulation 14A under the Exchange Act and such
nominee’s written consent to serve as a director if elected,
and (E) a description of all direct and indirect compensation and
other material monetary arrangements, agreements or understandings
during the past three years, and any other material relationship,
if any, between or concerning such stockholder, any Stockholder
Associated Person (as defined below) or any of their respective
affiliates or associates, on the one hand, and the proposed nominee
or any of his or her affiliates or associates, on the other hand;
(ii) as to each proposal that the stockholder seeks to bring before
the meeting, a brief description of such proposal, the reasons for
making the proposal at the meeting, the text of the proposal or
business (including the text of any resolutions proposed for
consideration and in the event that such business includes a
proposal to amend the bylaws of the Corporation, the language of
the proposed amendment) and any material interest that the
stockholder has in the proposal; and (iii) (A) the name and address
of the stockholder giving the notice and the Stockholder Associated
Persons, if any, on whose behalf the nomination or proposal is
made, (B) the class (and, if applicable, series) and number of
shares of stock of the Corporation that are, directly or
indirectly, owned beneficially or of record by the stockholder or
any Stockholder Associated Person, (C) any option, warrant,
convertible security, stock appreciation right or similar right
with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class (or, if applicable,
series) of shares of stock of the Corporation or with a value
derived in whole or in part from the value of any class (or, if
applicable, series) of shares of stock of the Corporation, whether
or not such instrument or right shall be subject to settlement in
the underlying class or series of stock of the Corporation or
otherwise (each, a “Derivative Instrument”)
directly or indirectly owned beneficially or of record by such
stockholder or any Stockholder Associated Person and any other
direct or indirect opportunity to profit or share in any profit
derived from any increase or decrease in the value of shares of
stock of the Corporation of the stockholder or any Stockholder
Associated Person, (D) any proxy, contract, arrangement,
understanding or relationship pursuant to which such stockholder or
any Stockholder Associated Person has a right to vote any
securities of the Corporation, (E) any proportionate interest in
shares of the Corporation or Derivative Instruments held, directly
or indirectly, by a general or limited partnership in which such
stockholder or any Stockholder Associated Person is a general
partner or beneficially owns, directly or indirectly, an interest
in a general partner, (F) any performance-related fees (other than
an asset-based fee) that such stockholder or any Stockholder
Associated Person is entitled to based on any increase or decrease
in the value of the shares of stock of the Corporation or
Derivative Instruments, (G) any other information relating to such
stockholder or any Stockholder Associated Person, if any, required
to be disclosed in a proxy statement or other filing required to be
made in connection with solicitations of proxies for, as
applicable, the proposal or for the election of directors in an
election contest pursuant to and in accordance with Section 14(a)
of the Exchange Act and the rules and regulations of the Commission
thereunder, (H) a representation that the stockholder is a holder
of record of stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting
to propose such business or nomination, (I) a certification as to
whether or not the stockholder and all Stockholder Associated
Persons, have complied with all applicable federal, state and other
legal requirements in connection with the stockholder’s and
each Stockholder Associated Person’s acquisition of shares of
stock or other securities of the Corporation and the
stockholder’s and each Stockholder Associated Person’s
acts or omissions as a stockholder (or beneficial owner of
securities) of the Corporation, and (J) whether either the
stockholder intends to deliver a proxy statement and form of proxy
to holders of, in the case of a proposal, at least the percentage
of the Corporation’s voting shares required under applicable
law to carry the proposal or, in the case of a nomination or
nominations, a sufficient number of holders of the
Corporation’s voting shares reasonably believed by such
stockholder to be sufficient to elect such nominee or nominees or
otherwise to solicit proxies or votes from stockholders in support
of such proposal or nomination. For purposes of these Bylaws, a
“Stockholder
Associated Person” of any stockholder means (i) any
“affiliate” or “associate” (as those terms
are defined in Rule 12b-2 under the Exchange Act) of such
stockholder, (ii) any beneficial owner of any stock or other
securities of the Corporation owned of record or beneficially by
such stockholder, (iii) any person directly or indirectly
controlling, controlled by or under common control with any such
Stockholder Associated Person referred to in clause (i) or (ii)
above, and (iv) any person acting in concert in respect of any
matter involving the Corporation or its securities with either such
stockholder or any beneficial owner of any stock or other
securities of the Corporation owned of record or beneficially by
such stockholder. In addition, in order for a nomination to be
properly brought before an annual or special meeting by a
stockholder pursuant to clause (iii) of Section 2.14(a), any
nominee proposed by a stockholder shall complete a questionnaire,
in a form provided by the Corporation, and deliver a signed copy of
such completed questionnaire to the Corporation within 10 days of
the date that the Corporation makes available to the stockholder
seeking to make such nomination or such nominee the form of such
questionnaire. The Corporation may require any proposed nominee to
furnish such other information as may be reasonably requested by
the Corporation to determine the eligibility of the proposed
nominee to serve as an independent director of the Corporation or
that could be material to a reasonable stockholder’s
understanding of the independence, or lack thereof, of the nominee.
The information required to be included in a notice pursuant to
this Section 2.14(c) shall be provided as of the date of such
notice and shall be supplemented by the stockholder not later than
10 days after the record date for the determination of stockholders
entitled to notice of the meeting to disclose any changes to such
information as of the record date. The information required to be
included in a notice pursuant to this Section 2.14(c) shall not
include any ordinary course business activities of any broker,
dealer, commercial bank, trust company or other nominee who is
directed to prepare and submit the notice required by this Section
2.14(c) on behalf of a beneficial owner of the shares held of
record by such broker, dealer, commercial bank, trust company or
other nominee and who is not otherwise affiliated or associated
with such beneficial owner.
(d) Subject
to the Certificate of Incorporation, Section 2.14(i) and applicable
law, only persons nominated in accordance with procedures stated in
this Section 2.14 shall be eligible for election as and to serve as
members of the Board of Directors and the only business that shall
be conducted at an annual meeting of stockholders is the business
that has been brought before the meeting in accordance with the
procedures set forth in this Section 2.14. The chairman of the
meeting shall have the power and the duty to determine whether a
nomination or any proposal has been made according to the
procedures stated in this Section 2.14 and, if any nomination or
proposal does not comply with this Section 2.14, unless otherwise
required by law, the nomination or proposal shall be
disregarded.
(e) For
purposes of this Section 2.14, “public announcement”
means disclosure in a press release reported by the Dow Jones News
Service, Associated Press or a comparable news service or in a
document publicly filed or furnished by the Corporation with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
(f) Notwithstanding
the foregoing provisions of this Section 2.14, a stockholder shall
also comply with applicable requirements of the Exchange Act and
the rules and regulations thereunder with respect to matters set
forth in this Section 2.14. Nothing in this Section 2.14 shall
affect any rights, if any, of stockholders to request inclusion of
nominations or proposals in the Corporation’s proxy statement
pursuant to applicable provisions of federal law, including the
Exchange Act.
(g) Notwithstanding
the foregoing provisions of this Section 2.14, unless otherwise
required by law, if the stockholder (or a qualified representative
of the stockholder) does not appear at the annual or special
meeting of stockholders of the Corporation to present a nomination
or proposed business or does not provide the information required
by Section 2.14(c), including any required supplement thereto, such
nomination shall be disregarded and such proposed business shall
not be transacted, notwithstanding that proxies in respect of such
vote may have been received by the Corporation. For purposes of
this Section 2.14, to be considered a qualified representative of
the stockholder, a person must be a duly authorized officer,
manager or partner of such stockholder or must be authorized by a
writing executed by such stockholder or an electronic transmission
delivered by such stockholder to act for such stockholder as proxy
at the meeting of stockholders and such person must produce such
writing or electronic transmission, or a reliable reproduction of
the writing or electronic transmission, at the meeting of
stockholders.
(h) Nominations
of persons for election to the Board of Directors may be made at a
special meeting of stockholders at which directors are to be
elected pursuant to the Corporation’s notice of meeting (i)
by or at the direction of the Board of Directors or any committee
thereof or (ii) provided that the Board of Directors has determined
that directors shall be elected at such meeting, by any stockholder
of the Corporation who is a stockholder of record at the time the
notice provided for in this Section 2.14 is delivered to the
Secretary of the Corporation, who is entitled to vote at the
meeting upon such election and who complies with this
Section 2.14. In the event the Corporation calls a special
meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder entitled
to vote in such election of directors may nominate a person or
persons (as the case may be) for election to such position(s) as
specified in the Corporation’s notice of meeting, if the
stockholder’s notice required by paragraph (b) of this
Section 2.14 shall be delivered to the Secretary of the Corporation
at the principal executive offices of the Corporation not later
than the close of business on the later of the 90th day prior to such
special meeting or the 10th day following the
day on which a public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting and not earlier than the
close of business on the 120th day prior to such
special meeting. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new
time period (or extend any time period) for the giving of a
stockholder’s notice as described above.
(i) All
provisions of this Section 2.14 are subject to, and nothing in this
Section 2.14 shall in any way limit the exercise, or the method or
timing of the exercise of the rights of any person granted by the
Corporation to nominate directors, which rights may be exercised
without compliance with the provisions of this Section
2.14.
Section
2.15. Remote
Communication.
(a) In
lieu of holding an annual or special meeting of stockholders at a
designated place as set forth in Section 2.1, the Board of
Directors may, in its sole discretion, determine that any annual or
special meeting of stockholders may be held solely by means of
remote communication.
(b) If
authorized by the Board of Directors, in its sole discretion, and
subject to such guidelines and procedures as the Board of Directors
may adopt, stockholders and proxyholders may, by means of remote
communication:
(i) Participate
in a meeting of stockholders, whether such meeting is held at a
designated place or solely by means of remote communication;
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, however,
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 to vote on matters submitted to the 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 action at the
meeting by means of remote communication, a record of such vote or
other action shall be maintained by the
Corporation.
ARTICLE 3 - BOARD OF DIRECTORS
Section
3.1. General
Powers and Qualifications of Directors. The business and
affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. In addition to the powers and
authorities these Bylaws expressly confer upon them, the Board of
Directors may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by the DGCL or by the
Certificate of Incorporation or by these Bylaws required to be
exercised or done by the stockholders. Directors need not be
stockholders of the Corporation to be qualified for election or
service as a director of the Corporation. No person shall stand for
election or re-election, or be nominated to stand for election or
re-election, to the Board of Directors if such person has attained
or will attain the age of 70 years old prior to the date of
election or re-election; provided, however, that the Board of
Directors may vote to waive such mandatory retirement age with
respect to a director if it deems such waiver to be in the best
interests of the Corporation and its stockholders. Any director
elected or re-elected who attains the age of 70 during a term to
which he or she was elected or re-elected shall continue to serve
for the expiration of his or her term, or until his or her earlier
death, resignation, or removal. A director may not serve on more
than two other public or private company boards of directors in
addition to the Corporation’s Board of
Directors.
Section
3.2. Number
of Directors. The number of directors constituting the full
Board of Directors shall be such number as shall be determined from
time to time by resolution of the Board of Directors, as provided
in the Certificate of Incorporation. The directors shall be divided
into three classes and shall be elected at the annual meeting of
the stockholders, as provided in the Certificate of Incorporation,
except as otherwise provided in this Article 3, and each director
elected shall hold office until his successor is elected and
qualified.
Section
3.3. Removal;
Resignation. Directors may only be removed as set forth in
the Certificate of Incorporation. Any director may resign at any
time upon notice given in writing, including by electronic
transmission, to the Corporation. Such resignation shall take
effect at the time specified therein or, if the time is not
specified, upon receipt thereof. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary
to make it effective.
Section
3.4 Vacancies. Any vacancies on the
Board of Directors resulting from death, resignation, removal, or
other cause, shall only be filled by the affirmative vote of a
majority of the remaining directors then in office, even though
less than a quorum of the Board of Directors, or by a sole
remaining director. Newly created directorships resulting from any
increase in the number of directors shall be filled by a majority
of the Board of Directors, or if not so filled, by the stockholders
at the next annual meeting or at a special meeting called for that
purpose in accordance with Section 2.3. Any director elected in
accordance with this Section 3.4 shall hold office for the
remainder of the full term of any class of directors in which the
new directorship was created or the vacancy occurred and until his
successor shall have been elected and qualified or until his
earlier resignation or removal.
Section
3.5. Annual
Meetings. The annual meeting of each newly elected Board of
Directors shall be held immediately following the annual meeting of
stockholders, at the same date and place, and no notice of such
meeting shall be necessary to the newly elected directors in order
to legally constitute the meeting, provided a quorum shall be
present.
Section
3.6 Regular Meetings. Regular
meetings of the Board of Directors shall be held at the place (if
any), on the date and at the time as shall have been established by
the Board of Directors and publicized among all directors. A notice
of a regular meeting, the date of which has been so publicized,
shall not be required.
Section
3.7 Special Meetings. Special
meetings of the Board of Directors may be called by the Chairman of
the Board of Directors, the Chief Executive Officer, the President
or by two or more directors then in office and shall be held at the
place, if any, on the date and at the time as he, she or they shall
fix. Any and all business may be transacted at a special meeting of
the Board of Directors.
Section
3.8
Notice
of Meetings. Notice of the place, if any, date and time of
each special meeting and each regular meeting of the Board of
Directors that has not been publicized among all directors shall be
given to each director either personally, or by mail, telephone,
facsimile or other means of electronic transmission providing
notice thereof not less than two days’ before the meeting.
Notice need not be given to any director who shall, either before
or after the meeting, submit a signed waiver in writing or by
electronic transmission of such notice or who shall attend such
meeting without protesting, prior to or at its commencement, the
lack of notice to such director. If waiver of notice is given by
electronic transmission, such electronic transmission must set
forth (or be submitted with) information from which it can be
determined that the electronic transmission was authorized by the
director. When a meeting of the Board of Directors or any committee
thereof is adjourned to another time and place (if any), then
unless otherwise provided by in the Certificate of Incorporation,
these Bylaws, or applicable law, notice need not be given of the
adjourned meeting if the adjourned meeting is scheduled at the
original meeting.
Section
3.9. Quorum.
At any meeting of the Board of Directors, a majority of the total
number of directors then in office shall constitute a quorum for
the transaction of business and the vote of a majority of the
directors present at any meeting at which there is a quorum shall
be the act of the Board of Directors, except as may be otherwise
provided by the Certificate of Incorporation, these Bylaws, or
applicable law. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be
present.
Section
3.10
Action
by Written Consent. Unless otherwise restricted by the
Certificate of Incorporation or by these Bylaws, any action
required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a
meeting, if all members of the Board of Directors or of any
committee thereof, as the case may be, consent thereto in writing
or by electronic transmission, and the writing or writings, or
electronic transmission or electronic transmissions, are filed with
the minutes of the proceedings of the Board of Directors or
committee thereof. 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
3.11
Participation in Meetings By
Conference Telephone or Other Communications Equipment.
Unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, members of the Board of Directors, or of any
committee thereof, may participate in a meeting of the Board of
Directors or committee thereof by means of conference telephone or
other communications equipment by means of which all directors
participating in the meeting can hear each other director, and such
participation shall constitute presence in person at the
meeting.
Section
3.12
Compensation of
Directors. The directors of the Corporation may be paid
their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors, paid an annual retainer or paid
other compensation, including equity compensation, as the Board of
Directors determines. 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 of
Directors may be allowed like compensation for attending committee
meetings.
ARTICLE
4 - COMMITTEES
Section
4.1
Committees of the Board of
Directors. The Board of Directors may, by resolution passed
by a majority of the whole Board of Directors, designate one or
more committees of the Board of Directors. The Board of Directors
may designate one or more directors as alternate members of any
committee. Any such committee, to the extent provided in the
resolution, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, to the extent permitted by law, and may authorize the
seal of the Corporation to be affixed to all papers which may
require it;provided,
however, that in the absence or disqualification of any
member of such committee or committees, the member or members
thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
Such committee or committees shall have such name or names as may
be determined from time to time by resolution adopted by the Board
of Directors.
Section
4.2
Committee Meetings; Quorum; Procedure;
Notice.
(a) Regular
meetings of any committee of the Board of Directors may be held at
such times and places (if any) as shall be fixed by the chairman of
the committee or by resolution adopted by a majority of the members
thereof, or in such other manner as provided by the Board of
Directors in the committee’s charter, unless the Board of
Directors otherwise provides.
(b) Special
meetings of any committee of the Board of Directors shall be called
by the chairman of the committee or in such other manner as
provided by the Board of Directors in the committee’s charter
or by resolution adopted by the majority of the members of the
committee. Any special meeting of any committee of the Board of
Directors shall be a legal meeting without any notice thereof
having been given, if all the members thereof shall be present in
person or by any of the means designated in Section 3.11 hereof as
constituting presence in person at the meeting.
(c) A
majority of any committee of the Board of Directors shall
constitute a quorum for the transaction of business at any meeting,
and the vote of a majority of the members thereof present at any
meeting at which a quorum is present shall be the act of such
committee, except as otherwise provided in Section 4.1 hereof. Any
committee of the Board of Directors may adopt such rules and
regulations not inconsistent with the Certificate of Incorporation,
these Bylaws, its charter or applicable law for the conduct of its
meetings as the committee may deem proper.
(d) Unless
otherwise provided by these Bylaws or any such rules or
resolutions, notice of the time and place (if any) of any meeting
of a committee shall be given to each member of such committee as
provided in Section 3.8 of these Bylaws with respect to notices of
meetings of the Board of Directors.
(e) Each
committee shall keep regular minutes of its meetings and report the
same to the Board of Directors when required.
ARTICLE
5 - OFFICERS
Section
5.1 Generally. The officers of the
Corporation shall be chosen by the Board of Directors and shall be
a Chairman of the Board, a Chief Executive Officer, a Chief
Financial Officer, a President, a Vice President, a Secretary, and
a Treasurer. The Board of Directors may also designate as officers
additional Vice Presidents, one or more Assistant Secretaries, and
one or more Assistant Treasurers. Each officer shall hold office
until his or her successor is elected and qualified or until his or
her earlier resignation or removal. Any number of offices may be
held by the same person, unless the Certificate of Incorporation or
these Bylaws otherwise provide. A Chief Executive Officer may serve
on only one other public company board of directors in addition to
the Corporation’s Board of Directors (if applicable). All
other officers of the Corporation are prohibited from serving on a
private or public company board of directors during his or her
service as an officer of the Corporation. The Board of Directors
may, in its discretion, allow service on other boards of directors
in excess of these limitations if it deems such waiver to be in the
best interests of the Corporation and its
stockholders.
Section
5.2 Salary. The compensation of
officers appointed by the Board of Directors shall be determined
from time to time by the Board of Directors or a committee thereof,
together with the policy of the Corporation as to reimbursement of
expenses incurred by such officers, as may be designated by
resolution of the Board of Directors.
Section
5.3 Term; Removal; Vacancy.
Officers shall hold office until their successors are chosen and
qualify or until their earlier resignation or removal. Any officer
elected or appointed by the Board of Directors may be removed at
any time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
Section
5.4
Chairman of the Board. The
Chairman of the Board of Directors shall preside at all meetings of
the Board of Directors and shall be responsible for strategic
direction of the business of the Corporation.
Section 5.5
Chief Executive Officer. The
Chief Executive Officer shall have, subject to the supervision,
direction and control of the Board of Directors, the general powers
and duties of supervision, direction, and management of the
business and affairs of the Corporation, including, without
limitation, all powers necessary to direct and control the
organizational and reporting relationships within the Corporation.
The Chief Executive Officer shall see that all orders and
resolutions of the Board of Directors are carried into effect. In
addition, the Chief Executive Officer shall have such other powers
and perform such other duties as may be delegated to him or her by
the Board of Directors or as are set forth in the Certificate of
Incorporation or these Bylaws. If the Board of Directors has not
elected or appointed a President or the office of the President is
otherwise vacant, and no officer otherwise functions with the
powers and duties of the President, then, unless otherwise
determined by the Board of Directors, the Chief Executive Officer
shall also have all the powers and duties of the
President.
Section
5.6
President. The President, if
there is such an officer and the Board of Directors so directs,
shall serve as chief operating officer and have the powers and
duties customarily and usually associated with the office of chief
operating officer unless the Board of Directors provides for
another officer to serve as chief operating officer (or to have the
powers and duties of chief operating officer). The President shall
have such other powers and perform such other dutiesas may be
delegated to him or her from time to time by the Board of Directors
or the Chief Executive Officer. If the Board of Directors has not
elected or appointed a Chief Executive Officer or the office of
Chief Executive Officer is otherwise vacant, then, unless otherwise
determined by the Board of Directors, the President shall also have
all the powers and duties of the Chief Executive
Officer.
Section
5.7. Vice
President. In the absence or vacancy of the Chief Executive
Officer and the President or, in the event of their 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 designed
by the Board of Directors, or in the absence of any designation,
then in the chronological order of their election as Vice
President) shall perform the duties of the Chief Executive and the
President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Chief Executive Officer
and the President. The Vice Presidents shall perform such other
duties and have such other powers as the Board of Directors, the
Chief Executive Officer, or the President may from time to time
prescribe.
Section
5.8. Secretary
and Assistant Secretaries.
(a) The
Secretary (or another person designated by the Chairman of the
Board) shall attend all meetings of the Board of Directors and all
meetings of the stockholders and record all the proceedings of the
meetings in a book to be kept for that purpose and shall perform
like duties for the standing committees when required. The
Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the
Board of Directors, Chief Executive Officer, or
President.
(b) The
Assistant Secretary (if there is such an office) or if there be
more than one, the Assistant Secretaries in the order determined by
the Board of Directors (or if there be no such determination, then
in the order of their election) shall, in the absence of the
Secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 5.9
Chief Financial Officer. The
Chief Financial Officer shall be responsible for the financial
affairs of the Corporation, including (if a Treasurer has been
appointed) overseeing the duties performed by the Treasurer. In
addition, the Chief Financial Officer shall have such powers and
duties customarily and usually associated with the office of the
Chief Financial Officer of a Corporation similar to the Corporation
and shall have such other powers and perform such other duties as
may be delegated to him or her from time to time by the Board of
Directors or the Chief Executive Officer.
Section
5.10. Treasurer.
The Treasurer (if there is such an officer and the Board of
Directors so directs) shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation
and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse
the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall
render to the Chief Executive Officer, the President (if there is
such an officer) and the Board of Directors, at its regular
meetings or otherwise as the Board of Directors so requires, an
account of all of his or her transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of
Directors, he or she shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of
his or her office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office,
of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to
the Corporation. Subject to the control of the Board of Directors,
he or she shall have such other powers and duties as the Board of
Directors, the Chief Executive Officer, or the President may from
time to time prescribe.
Section
5.11 Assistant Treasurers. The
Assistant Treasurer (if there is such an office), or if there shall
be more than one, the Assistant Treasurers, in the order determined
by the Board of Directors (or if there be no such determination,
then in the order of their election), shall, in the absence of the
Treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the Treasurer and
shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 5.12
Delegation of Authority. The
Board of Directors may from time to time delegate the powers or
duties of any officer to any other officer or agent,
notwithstanding any provision hereof.
ARTICLE
6 - STOCK
Section
6.1. Certificates of Stock. Except
as provided in Section 6.2 hereof, every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or
in the name of the Corporation by, (i) the Chairman of the Board
(if any) or the vice-chairman of the Board (if any), the Chief
Executive Officer, the President or a Vice President, and (ii) the
Secretary or an Assistant Secretary, or the Treasurer or an
Assistant Treasurer, or the Chief Financial Officer, certifying the
number of shares owned by such stockholder.
Section
6.2. Uncertificated Shares. The
Board of Directors may provide by resolution that some or all of
any or all classes and series of shares of the Corporation shall be
uncertificated shares provided that the resolution shall not apply
to shares represented by a certificate until the certificate is
surrendered to the Corporation and the resolution shall not apply
to a certificated security issued in exchange for an uncertificated
security. Within a reasonable time after the issuance or transfer
of uncertificated shares, the Corporation shall send to the
registered owner of the shares a written notice containing the
information required to be set forth or state on share certificates
in accordance with all applicable laws. Except as expressly
provided by law, the rights and obligations of the holders of
uncertificated shares and the rights and obligations of the holders
of certificates representing shares of the same class and series
shall be identical.
Section
6.3. Signatures.
Where a certificate is countersigned (a) by a transfer agent other
than the Corporation or its employees, or (b) by a registrar other
than the Corporation or its employee, any other signature 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 before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of
issue.
Section
6.4. Transfers of Stock. Upon
surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to
issue a new certificate to the person entitled thereto, cancel the
old certificate and record the transaction upon its books. In the
case of uncertificated shares, transfers of shares shall be made on
the books of the Corporation upon receipt of proper transfer
instructions from the registered holder of the shares or person
authorized constituted in writing, and upon payment of all
necessary transfer taxes and compliance with appropriate procedures
for transferring shares in uncertified form;provided, however, that such surrender
and endorsement, compliance or payment of taxes shall not be
required in any case in which the officers shall determine to waive
such requirement.
Section
6.5. Lost, Stolen or Destroyed
Certificates. The Board of Directors or any officer may
direct a new certificate or certificates to be issued in place of
any certificate theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen or destroyed. When authorizing such issue
of a new certificate or certificates, the Board of Directors or
such officer may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative,
to give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section
6.6. Regulations.
The Board of Directors shall have authority to make such rules and
regulations, not inconsistent with law, the Certificate of
Incorporation, or these Bylaws, as it deems expedient concerning
the issuance, transfer and registration of certificates for shares
and the shares represented thereby and of uncertificated
shares.
Section
6.7. Fixing
Record Date.
(a) In
order that the Corporation may determine the stockholders entitled
to notice of any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which
record date shall, unless otherwise required by law, not be more
than 60 nor less than 10 days before the date of such meeting. If
the Board of Directors so fixes a date, such date shall also be the
record date for determining the stockholders entitled to vote at
such meeting unless the Board of Directors determines, at the time
it fixes such record date, that a later date on or before the date
of the meeting shall be the date for determining stockholders
entitled to vote. If no record date is fixed by the Board of
Directors, 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 day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided,
however, that the Board of Directors may fix a new record
date for determination of stockholders entitled to vote at the
adjourned meeting, and in such case shall also fix as the record
date for stockholders entitled to notice of such adjourned meeting
the same or an earlier date as that fixed for determination of
stockholders entitled to vote in accordance herewith at the
adjourned meeting.
(b) If
and to the extent that stockholder action by written consent is
permitted by the Certificate of Incorporation, in order that the
Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors and which date shall not be
more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board of Directors. If no record
date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board of
Directors is required, 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 its registered
office in this State, its principal place of business, or an
officer or agent of the Corporation having custody of the book in
which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation’s registered office shall be
by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by
the DGCL, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be
at the close of business on the day on which the Board of Directors
adopts the resolution taking such prior action.
(c) 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 of
Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date
is adopted, 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 of Directors adopts
the resolution relating thereto.
(d) The
Corporation shall be entitled to recognize the exclusive right of a
person registered in its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls
and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other
claim to or interest in such shares on the part of any other
person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the DCGL.
ARTICLE 7 - INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES
Section
7.1. Indemnification.
The Corporation shall indemnify and hold harmless, to the fullest
extent permitted by applicable law as it currently exists or as may
hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), any person (an
“Indemnitee”) who was or
is made, or is threatened to be made, a party or is otherwise
involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a “Proceeding”), by reason
of the fact that he or she, or a person for whom he or she is the
legal representative, is or was a director, officer, employee, or
agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee, or agent of
another corporation or of a partnership, joint venture, trust,
enterprise, or non-profit entity, including, but not limited to,
service with respect to employee benefit plans (any such entity, an
“Other
Entity”), against all liability and loss suffered
(including, but not limited to, expenses (including, but not
limited to, attorneys’ fees and expenses), judgments, fines
and amounts paid in settlement actually and reasonably incurred by
such Indemnitee in connection with such Proceeding).
Notwithstanding the preceding sentence, the Corporation shall be
required to indemnify an Indemnitee in connection with a Proceeding
(or part thereof) commenced by such Indemnitee only if the
commencement of such Proceeding (or part thereof) by the Indemnitee
was authorized by the Board of Directors of the Corporation or the
Proceeding (or part thereof) relates to the enforcement of the
Corporation’s obligations under this Section
7.1.
Section
7.2. Advancement of Expenses. The
Corporation shall to the fullest extent not prohibited by
applicable law pay, on an as-incurred basis, all expenses
(including, but not limited to attorneys’ fees and expenses)
incurred by an Indemnitee in investigating, responding to,
defending or testifying in any Proceeding in advance of its final
disposition. Such advancement shall be unconditional, unsecured and
interest free and shall be made without regard to
Indemnitee’s ability to repay any expenses
advanced;provided, however,
that, to the extent required by law, such payment of expenses in
advance of the final disposition of the Proceeding shall be made
only upon receipt of an unsecured undertaking by the Indemnitee to
repay all amounts advanced if it should be ultimately determined
that the Indemnitee is not entitled to be indemnified under this
Article 7 or otherwise.
Section
7.3. Claims.
If a claim for indemnification (following the final disposition of
such proceeding) or advancement of expenses under this Article 7 is
not paid in full within sixty (60) days after a written claim
therefor by the Indemnitee has been received by the Corporation,
the Indemnitee may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to
be paid the expense of prosecuting such claim to the fullest extent
permitted by law. In any such action the Corporation shall have the
burden of proving that the Indemnitee is not entitled to the
requested indemnification or advancement of expenses under
applicable law.
Section
7.4. 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 is or was serving
at the request of the Corporation as a director, officer, employee,
or agent of an Other Entity, against any liability asserted against
the person and incurred by the person in any such capacity, or
arising out of his or her status as such, whether or not the
Corporation would have the power or the obligation to indemnify
such person against such liability under the provisions of this
Article 7 or the DGCL.
Section
7.5. Survival;
Non-Exclusivity of Rights. The rights conferred on any
Indemnitee by this Article 7 shall continue as to a person who has
ceased to be a director or officer of the Corporation and are not
exclusive of other rights arising under any applicable law,
provision of the Certificate of Incorporation, these Bylaws, an
agreement, vote of disinterested directors or stockholders or
otherwise. Any such rights shall inure to the benefit of the heirs
and legal representatives of such Indemnitee. The Corporation may
enter into agreements with any Indemnitee for the purpose of
providing for indemnification or advancement of
expenses.
Section
7.6. Amounts
Received from an Other Entity. Subject to Section 7.7, the
Corporation’s obligation, if any, to indemnify or to advance
expenses to any Indemnitee who was or is serving at the
Corporation’s request as a director, officer, employee, or
agent of an Other Entity shall be reduced by any amount such
Indemnitee may collect as indemnification or advancement of
expenses from such Other Entity.
Section
7.7. Indemnification Priority. As
between the Corporation and any other person (other than an entity
directly or indirectly controlled by the Corporation) who provides
indemnification to the Indemnitees for their service to, or on
behalf of, the Corporation (collectively, the “Secondary Indemnitors”)
(i) the Corporation shall be the full indemnitor of first resort in
respect of indemnification or advancement of expenses in connection
with any Jointly Indemnifiable Claims (as defined below), pursuant
to and in accordance with the terms of this Article 7, irrespective
of any right of indemnification, advancement of expenses or other
right of recovery any Indemnitee may have from any Secondary
Indemnitor or any right to insurance coverage that Indemnitee may
have under such insurance policy issued to any Secondary Indemnitor
(i.e., the Corporation’s obligations to such Indemnitees are
primary and any obligation of any Secondary Indemnitor, or any
insurer of any Secondary Indemnitor, to advance expenses or to
provide indemnification or insurance coverage for the same loss or
liability incurred by such Indemnitees is secondary to the
Corporation’s obligations), (ii) the Corporation shall be
required to advance the full amount of expenses incurred by any
such Indemnitee (including, but not limited to, expenses (including
but not limited to, attorneys’ fees and expenses), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by such Indemnitee in connection with such Proceeding),
without regard to any rights any such Indemnitee may have against
any Secondary Indemnitor or against any insurance carrier providing
insurance coverage to Indemnitee under any insurance policy issued
to a Secondary Indemnitor, and (iii) the Corporation irrevocably
waives, relinquishes and releases each Secondary Indemnitor from
any and all claims against such Secondary Indemnitor for
contribution, subrogation or any other recovery of any kind in
respect thereof. The Corporation shall indemnify each Secondary
Indemnitor directly for any amounts that such Secondary Indemnitor
pays as indemnification or advancement on behalf of any such
Indemnitee and for which such Indemnitee may be entitled to
indemnification from the Corporation in connection with Jointly
Indemnifiable Claims. No right of indemnification, advancement of
expenses or other right of recovery that an Indemnitee may have
from any Secondary Indemnitor shall reduce or otherwise alter the
rights of the Indemnitee or the obligations of the Corporation
hereunder. No advancement or payment of any Secondary Indemnitor on
behalf of any such Indemnitee with respect to any claim for which
such Indemnitee has sought indemnification from the Corporation
shall affect the foregoing, and the Secondary Indemnitors shall be
subrogated to the extent of such advancement or payment to all of
the rights of recovery of such Indemnitee against the Corporation.
Each Indemnitee shall execute all papers reasonably required and
shall do all things that may be reasonably necessary to secure the
rights of such Indemnitee’s Secondary Indemnitors under this
Section 7.7, including the execution of such documents as may be
necessary to enable the Secondary Indemnitors effectively to bring
suit to enforce such rights, including in the right of the
Corporation. Each of the Secondary Indemnitors shall be third-party
beneficiaries with respect to this Section 7.7, entitled to enforce
this Section 7.7. As used in this Section 7.7, the term
“Jointly
Indemnifiable Claims” shall be broadly construed and
shall include, without limitation, any action, suit, proceeding or
other matter for which an Indemnitee shall be entitled to
indemnification, reimbursement, advancement or expenses or
insurance coverage from both a Secondary Indemnitor (or an
insurance carrier proving insurance coverage to any Secondary
Indemnitor) and the Corporation, whether pursuant to Delaware law
(or other applicable law in the case of any Secondary Indemnitor),
any agreement or certificate of incorporation, bylaws, partnership
agreement, operating agreement, certificate of formation,
certificate of limited partnership or other organization or
governing documents of the Corporation or the Secondary Indemnitors
or any insurance policy providing insurance coverage to any
Secondary Indemnitor, as applicable.
Section
7.8. Amendment or Repeal. Any repeal
or modification of the foregoing provisions of this Article 7 shall
not adversely affect any right or protection hereunder of any
Indemnitee in respect of any act or omission occurring prior to the
time of such repeal or modification.
Section
7.9. Other Indemnification and Advancement
of Expenses. This Article 7 shall not limit the right of the
Corporation, to the extent and in the manner permitted by law, to
indemnify and to advance expenses to persons other than Indemnitees
when and as authorized by appropriate corporate
action.
ARTICLE 8 - MISCELLANEOUS
Section
8.1. Corporate
Seal. The corporate seal shall have inscribed thereon the
words “Corporate Seal, Delaware” and may include the
name of the Corporation and the year of its incorporation. The
corporate seal may be used by causing it or a facsimile thereof to
be impressed or affixed or in any other manner reproduced. The
Corporation may adopt for any transaction, without the specific
leave of the Board of Directors, a seal which is different from its
customary and usual seal; and it shall be sufficient in any
document requiring the seal of the Corporation if the officer
executing such document on behalf of the Corporation, being
authorized to do so, writes or prints the word “Seal”
or makes some similar mark.
Section
8.2.
Fiscal Year. The
fiscal year of the Corporation shall be as fixed by the Board of
Directors.
Section
8.3.
Dividends.
Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special
meeting, pursuant to applicable law. Dividends may be paid in cash,
in property, or in shares of the Corporation’s capital stock,
subject to the provisions of the Certificate of
Incorporation.
Section
8.4. Reserves.
Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums
as the Board of Directors may from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or
maintain any property of the Corporation, or for such other
purposes as the Board of Directors shall think conducive to the
interest of the Corporation, and the directors may modify or
abolish any such reserve in the manner in which it was
created.
Section 8.5.
Checks. All checks
or demands for money and notes of the Corporation shall be signed
by such officer or officers or such other person or persons as the
Board of Directors may from time to time
designate.
Section
8.6. Electronic
Transmission. For purposes of these Bylaws,
“electronic transmission” means any form of
communication, not directly involving the physical transmission of
paper by such a recipient through an automated process, and that
meets the standards set forth in Section 2.4(b).
Section
8.7. Section
References. Unless otherwise indicated, all references in
these Bylaws to a Section or Sections are to the section or
sections of these Bylaws.
Section
8.8. Gender.
Throughout these Bylaws, unless the context clearly requires a
different interpretation, all references to “he” or
“him” or his” shall be read to mean “he or
she,” “him or her,” or “his or hers,”
respectively.
ARTICLE 9 - FORUM FOR ADJUDICATION OF
DISPUTES
Unless
the Corporation consents in writing to the selection of an
alternative forum, to the fullest extent permitted by law, all
Internal Corporate Claims shall be brought solely and exclusively
in the Court of Chancery of the State of Delaware (or, if such
court does not have jurisdiction, the Superior Court of the State
of Delaware, or, if such other court does not have jurisdiction,
the United States District Court for the District of Delaware).
“Internal Corporate Claims” means claims, including
claims in the right of the Corporation, brought by a stockholder
(including a beneficial owner) (i) that are based upon a violation
of a duty by a current or former director or officer or stockholder
in such capacity, or (ii) as to which the DGCL confers jurisdiction
upon the Court of Chancery of the State of Delaware.
ARTICLE 10 - AMENDMENTS
Subject
to any restrictions set forth in the Certificate of Incorporation,
these Bylaws may be altered, amended or repealed or new bylaws may
be adopted by the stockholders or by the Board of Directors, when
such power is conferred upon the Board of Directors by the
Certificate of Incorporation, at any regular meeting of the
stockholders or of the Board of Directors or at any special meeting
of the stockholders or of the Board of Directors if notice of such
alteration, amendment, repeal or adoption of new Bylaws be
contained in the notice of such special meeting.