Exhibit 4.2
AMENDED AND RESTATED
BYLAWS
OF
BIODEL INC.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
1.1. REGISTERED OFFICE.
The registered office of Biodel Inc. (the “Corporation”) in the State of Delaware shall be in
the City of Wilmington, County of New Castle.
1.2. OTHER OFFICES.
The Corporation shall also have and maintain an office or principal place of business at such
place as may be fixed by the Board of Directors, and may also have offices at such other places,
both within and without the State of Delaware as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
CORPORATE SEAL
2.1. CORPORATE SEAL.
The Board of Directors may adopt a corporate seal. The corporate seal shall consist of a die
bearing the name of the Corporation and the inscription, “Corporate Seal-Delaware.” Said seal may
be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE III
STOCKHOLDERS’ MEETINGS
3.1. PLACE OF MEETINGS.
Meetings of the stockholders of the Corporation may be held at such place, either within or
without the State of Delaware, as may be determined from time to time by the Board of Directors.
The Board of Directors may, in its sole discretion, determine that the meeting shall not
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be held at any place, but may instead be held solely by means of remote communication as
provided under the Delaware General Corporation Law (the “DGCL”).
3.2. ANNUAL MEETINGS.
(A) The annual meeting of the stockholders of the Corporation, for the purpose of election of
directors and for such other business as may lawfully come before it, shall be held on such date
and at such time as may be designated from time to time by the Board of Directors. Nominations of
persons for election to the Board of Directors of the Corporation and the proposal of business to
be considered by the stockholders may be made at an annual meeting of stockholders: (i) pursuant to
the Corporation’s notice of meeting of stockholders; (ii) by or at the direction of the Board of
Directors; or (iii) by any stockholder of the Corporation who was a stockholder of record at the
time of giving the stockholder’s notice provided for in the following paragraph, who is entitled to
vote at the meeting and who complied with the notice procedures set forth in this Section 3.2.
(B) At an annual meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 3.2(a) of
these Amended and Restated Bylaws, (i) the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation, (ii) such other business must be a proper matter for
stockholder action under DGCL, (iii) if the stockholder, or the beneficial owner on whose behalf
any such proposal or nomination is made, has provided the Corporation with a Solicitation Notice
(as defined in clause (iii) of the last sentence of this Section 3.2(b)), such stockholder or
beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of
proxy to holders of at least the percentage of the Corporation’s voting shares required under
applicable law to carry any such proposal, or, in the case of a nomination or nominations, have
delivered a proxy statement and form of proxy to holders of a percentage of the Corporation’s
voting shares reasonably believed by such stockholder or beneficial owner to be sufficient to elect
the nominee or nominees proposed to be nominated by such stockholder, and must, in either case,
have included in such materials the Solicitation Notice, and (iv) if no Solicitation Notice
relating thereto has been timely provided pursuant to this section, the stockholder or beneficial
owner proposing such business or nomination must not have solicited a number of proxies sufficient
to have required the delivery of such a Solicitation Notice under this Section 5. To be timely, a
stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the ninetieth (90th) day nor earlier than the
close of business on the one hundred twentieth (120th) day prior to the first anniversary of the
preceding year’s annual meeting; provided, however, that in the event that the date of the annual
meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days
after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be
timely must be so delivered not earlier than the close of business on the one hundred twentieth
(120th) day prior to such annual meeting and not later than the close of business on the later of
the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on
which public announcement of the date of such meeting is first made. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period for the giving of a
stockholder’s notice as described above. Such stockholder’s notice shall set forth: (A) as to each
person whom the stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in solicitations of proxies
for
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election of directors in an election contest, or is otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “1934 Act”) and Rule
14a-4(d) thereunder (including such person’s written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (C) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation’s books, and of such beneficial owner, (ii) the
class and number of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, and (iii) whether either such stockholder or beneficial
owner intends to deliver a proxy statement and form of proxy to holders of, in the case of the
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 to elect such nominee or nominees (an affirmative
statement of such intent, a “Solicitation Notice “).
(C) Notwithstanding anything in the third sentence of Section 3.2(b) of these Amended and
Restated Bylaws to the contrary, in the event that the number of directors to be elected to the
Board of Directors of the Corporation is increased and there is no public announcement naming all
of the nominees for director or specifying the size of the increased Board of Directors made by the
Corporation at least one hundred (100) days prior to the first anniversary of the preceding year’s
annual meeting, a stockholder’s notice required by this Section 3.2 shall also be considered
timely, but only with respect to nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive offices of the Corporation not later
than the close of business on the tenth (10th) day following the day on which such public
announcement is first made by the Corporation.
(D) Only such persons who are nominated in accordance with the procedures set forth in this
Section 3.2 shall be eligible to serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in accordance with the
procedures set forth in this Section 3.2. Except as otherwise provided by law, the Chairman of the
meeting shall have the power and duty to determine whether a nomination or any business proposed to
be brought before the meeting was made, or proposed, as the case may be, in accordance with the
procedures set forth in these Amended and Restated Bylaws and, if any proposed nomination or
business is not in compliance with these Amended and Restated Bylaws, to declare that such
defective proposal or nomination shall not be presented for stockholder action at the meeting and
shall be disregarded.
(E) Notwithstanding the foregoing provisions of this Section 3.2, in order to include
information with respect to a stockholder proposal in the proxy statement and form of proxy for a
stockholders’ meeting, stockholders must provide notice as required by the regulations promulgated
under the 1934 Act. Nothing in these Amended and Restated Bylaws 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 1934 Act.
(F) For purposes of this Section 3.2, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or
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comparable national news service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
3.3. SPECIAL MEETINGS.
(A) Special meetings of the stockholders of the Corporation may be called, for any purpose or
purposes, by (i) the Chairman of the Board of Directors, (ii) the Chief Executive Officer, (iii)
the President or (iv) the Board of Directors pursuant to a resolution adopted by a majority of the
total number of authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the Board of Directors for
adoption).
(B) If a special meeting is properly called by any person or persons other than the Board of
Directors, the request shall be in writing, specifying the general nature of the business proposed
to be transacted, and shall be delivered personally or sent by certified or registered mail, return
receipt requested, to the Chairman of the Board of Directors, the Chief Executive Officer, or the
Secretary of the Corporation. No business may be transacted at such special meeting otherwise than
specified in such notice. The Board of Directors shall determine the time and place of such special
meeting, which shall be held not less than thirty-five (35) nor more than one hundred twenty (120)
days after the date of the receipt of the request. Upon determination of the time and place of the
meeting, the officer receiving the request shall cause notice to be given to the stockholders
entitled to vote, in accordance with the provisions of Section 3.4 of these Amended and Restated
Bylaws. Nothing contained in this paragraph (b) shall be construed as limiting, fixing, or
affecting the time when a meeting of stockholders called by action of the Board of Directors may be
held.
(C) 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 (ii) by any stockholder of the
Corporation who is a stockholder of record at the time of giving notice provided for in these
Amended and Restated Bylaws who shall be entitled to vote at the meeting and who complies with the
notice procedures set forth in this Section 3.3(c). 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 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 Section 3.2(b) of these Amended and Restated Bylaws shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier than the close of
business on the one hundred twentieth (120th) day prior to such special meeting and not later than
the close of business on the later of the ninetieth (90th) day prior to such meeting or the tenth
(10th) day following the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting commence a new time
period for the giving of a stockholder’s notice as described above.
3.4. NOTICE OF MEETINGS.
Except as otherwise provided by law, notice, given in writing or by electronic transmission,
of each meeting of stockholders shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting to each stockholder entitled to vote at such meeting,
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such notice to specify the place, if any, date and hour, in the case of special meetings, the
purpose or purposes of the meeting, and the means of remote communications, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at any such meeting.
If mailed, notice is deemed given when deposited in the United States mail, postage prepaid,
directed to the stockholder at such stockholder’s address as it appears on the records of the
Corporation. Notice of the time, place, if any, and purpose of any meeting of stockholders may be
waived in writing, signed by the person entitled to notice thereof, or by electronic transmission
by such person, either before or after such meeting, and will be waived by any stockholder by his
attendance thereat in person, by remote communication, if applicable, or by proxy, except when the
stockholder attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully called or convened.
Any stockholder so waiving notice of such meeting shall be bound by the proceedings of any such
meeting in all respects as if due notice thereof had been given. Neither the business nor the
purpose of any meeting need be specified in any such waiver.
3.5. QUORUM.
At all meetings of stockholders, except where otherwise provided by statute or by the
Certificate of Incorporation of the Company, as the same may be amended from time to time (the
“Certificate of Incorporation”), or by these Amended and Restated Bylaws, the presence, in person,
by remote communication, if applicable, or by proxy duly authorized, of the holders of a majority
of the outstanding shares of stock entitled to vote shall constitute a quorum for the transaction
of business. In the absence of a quorum, any meeting of stockholders may be adjourned, from time to
time, either by the chairman of the meeting or by vote of the holders of a majority of the shares
represented thereat, but no other business shall be transacted at such meeting. The stockholders
present at a duly called or convened meeting, at which a quorum is present, may continue to
transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum. Except as otherwise provided by statute or by applicable stock exchange or
Nasdaq rules, or by the Certificate of Incorporation or these Amended and Restated Bylaws, in all
matters other than the election of directors, the affirmative vote of a majority of shares present
in person, by remote communication, if applicable, or represented by proxy at the meeting and
entitled to vote generally on the subject matter shall be the act of the stockholders. Except as
otherwise provided by statute, the Certificate of Incorporation or these Amended and Restated
Bylaws, directors shall be elected by a plurality of the votes of the shares present in person, by
remote communication, if applicable, or represented by proxy at the meeting and entitled to vote
generally on the election of directors. Where a separate vote by a class or classes or series is
required, except where otherwise provided by the statute or by the Certificate of Incorporation or
these Amended and Restated Bylaws, a majority of the outstanding shares of such class or classes or
series, present in person, by remote communication, if applicable, or represented by proxy duly
authorized, shall constitute a quorum entitled to take action with respect to that vote on that
matter. Except where otherwise provided by statute or by the Certificate of Incorporation or these
Amended and Restated Bylaws, the affirmative vote of a majority (plurality, in the case of the
election of directors) of the outstanding shares of such class or classes or series present in
person, by remote communication, if applicable, or represented by proxy at the meeting shall be the
act of such class or classes or series
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3.6. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS.
Any meeting of stockholders, whether annual or special, may be adjourned from time to time
either by the chairman of the meeting or by the vote of a majority of the shares present in person,
by remote communication, if applicable, or represented by proxy at the meeting. 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 are announced at the meeting at which the adjournment is taken.
At the adjourned meeting, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty (30) days or if
after the adjournment a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
3.7. VOTING RIGHTS.
For the purpose of determining those stockholders entitled to vote at any meeting of the
stockholders, except as otherwise provided by law, only persons in whose names shares stand on the
stock records of the Corporation on the record date, as provided in Section 3.9 of these Amended
and Restated Bylaws, shall be entitled to vote at any meeting of stockholders. Every person
entitled to vote or execute consents shall have the right to do so either in person, by remote
communication, if applicable, or by an agent or agents authorized by a proxy granted in accordance
with Delaware law. An agent so appointed need not be a stockholder. No proxy shall be voted after
three (3) years from its date of creation unless the proxy provides for a longer period.
3.8. JOINT OWNERS OF STOCK.
If shares or other securities having voting power stand of record in the names of two (2) or
more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety, or otherwise, or if two (2) or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary is given written notice to the
contrary and is furnished with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting shall have the following
effect: (a) if only one (1) votes, his act binds all; (b) if more than one (1) votes, the act of
the majority so voting binds all; (c) if more than one (1) votes, but the vote is evenly split on
any particular matter, each faction may vote the securities in question proportionally, or may
apply to the Delaware Court of Chancery for relief as provided in the DGCL, Section 217(b). If the
instrument filed with the Secretary shows that any such tenancy is held in unequal interests, a
majority or even-split for the purpose of subsection (c) shall be a majority or even-split in
interest.
3.9. LIST OF STOCKHOLDERS.
The Secretary shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at said meeting, arranged in
alphabetical order, showing the address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, (a) 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 (b) 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
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Corporation. The list shall be open to examination of any stockholder during the time of the
meeting as provided by law.
3.10. ACTION WITHOUT MEETING.
No action shall be taken by the stockholders except at an annual or special meeting of
stockholders called in accordance with these Amended and Restated Bylaws, and no action shall be
taken by the stockholders by written consent.
3.11. ORGANIZATION.
(A) At every meeting of stockholders, the Chairman of the Board of Directors, or, if a
Chairman has not been appointed or is absent, the President, or, if the President is absent, a
chairman of the meeting chosen by a majority in interest of the stockholders entitled to vote,
present in person or by proxy, shall act as chairman. The Secretary, or, in his absence, an
Assistant Secretary directed to do so by the President, shall act as secretary of the meeting.
(B) The Board of Directors of the Corporation shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or
convenient. Subject to such rules and regulations of the Board of Directors, if any, the chairman
of the meeting shall have the right and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such chairman, are necessary, appropriate
or convenient for the proper conduct of the meeting, including, without limitation, establishing an
agenda or order of business for the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, limitations on participation in such meeting to
stockholders of record of the Corporation and their duly authorized and constituted proxies and
such other persons as the chairman shall permit, restrictions on entry to the meeting after the
time fixed for the commencement thereof, limitations on the time allotted to questions or comments
by participants and regulation of the opening and closing of the polls for balloting on matters
which are to be voted on by ballot. The date and time of the opening and closing of the polls for
each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.
Unless and to the extent determined by the Board of Directors or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with rules of parliamentary
procedure.
(C) The chairman of the meeting shall announce at the meeting when the polls for each matter
to be voted upon at the meeting will be opened and closed. After the polls close, no ballots,
proxies or votes or any revocations or changes thereto may be accepted.
(D) In advance of any meeting of stockholders, the Board of Directors, the Chairman of the
Board, the Chief Executive Officer or the President shall appoint one or more inspectors of
election to act at the meeting and make a written report thereof. One or more other persons may be
designated as alternate inspectors to replace any inspector who fails to act. If no inspector or
alternate is present, ready and willing to act at a meeting of stockholders, the chairman of the
meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by
law, inspectors may be officers, employees or agents of the corporation. Each inspector, before
entering upon the discharge of such inspector’s duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the best of such
inspector’s ability. The inspector shall have the duties prescribed by law and shall take charge
of
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the polls and, when the vote is completed, shall make a certificate of the result of the vote
taken and of such other facts as may be required by law. Every vote taken by ballots shall be
counted by a duly appointed inspector or duly appointed inspectors.
ARTICLE IV
DIRECTORS
4.1. NUMBER AND TERM OF OFFICE.
The authorized number of directors of the Corporation shall be fixed in accordance with the
Certificate of Incorporation. Directors need not be stockholders unless so required by Certificate
of Incorporation. If for any cause, the directors shall not have been elected at an annual meeting,
they may be elected as soon thereafter as convenient at a special meeting of the stockholders
called for that purpose in the manner provided in these Amended and Restated Bylaws.
4.2. POWERS.
The powers of the Corporation shall be exercised, its business conducted and its property
controlled by the Board of Directors, except as may be otherwise provided by statute or by the
Certificate of Incorporation.
4.3. CLASSES OF DIRECTORS.
Subject to the rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, the directors shall be divided into three classes
designated as Class I, Class II and Class III, respectively. Initially, directors shall be assigned
to each class in accordance with a resolution or resolutions adopted by the Board of Directors. At
the first annual meeting of stockholders following the initial classification, the term of office
of the Class I directors shall expire and Class I directors shall be elected for a full term of
three years. At the second annual meeting of stockholders following such initial classification,
the term of office of the Class II directors shall expire and Class II directors shall be elected
for a full term of three years. At the third annual meeting of stockholders following such initial
classification, the term of office of the Class III directors shall expire and Class III directors
shall be elected for a full term of three years. At each succeeding annual meeting of stockholders,
directors shall be elected for a full term of three years to succeed the directors of the class
whose terms expire at such annual meeting. No stockholder entitled to vote at an election for
directors may cumulate votes to which such stockholder is entitled. Each director shall serve
until his successor is duly elected and qualified or until his earlier death, resignation or
removal. No decrease in the number of directors constituting the Board of Directors shall shorten
the term of any incumbent director.
4.4. CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors, when present, shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of Directors shall perform other
duties commonly incident to the office and shall also perform such other duties and have such other
powers, as the Board of Directors shall designate from time to time. If there is no Chief Executive
Officer or President, unless otherwise determined by the Board of Directors, then
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the Chairman of the Board of Directors shall also serve as the Chief Executive Officer of the
Corporation and shall have the powers and duties prescribed in paragraph (B) of Section 5.4.
4.5. VACANCIES.
Unless otherwise provided in the Certificate of Incorporation and subject to the rights of the
holders of any series of Preferred Stock, any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other causes and any newly created directorships
resulting from any increase in the number of directors shall be filled only by the affirmative vote
of a majority of the directors then in office, even though less than a quorum of the Board of
Directors. Any director elected in accordance with the preceding sentence shall hold office for the
remainder of the full term of the director for which the vacancy was created or occurred and until
such director’s successor shall have been elected and qualified. A vacancy in the Board of
Directors shall be deemed to exist under this Section 4.5 in the case of the death, removal or
resignation of any director.
4.6. RESIGNATION.
Any director may resign at any time by delivering his or her notice in writing or by
electronic transmission to the Secretary, such resignation to specify whether it will be effective
at a particular time, upon receipt by the Secretary or at the pleasure of the Board of Directors.
If no such specification is made, it shall be deemed effective upon delivery.
4.7. REMOVAL.
(A) Subject to the rights of any series of Preferred Stock to elect additional directors under
specified circumstances, neither the Board of Directors nor any individual director may be removed
without cause.
(B) Subject to any limitation imposed by law, any individual director or directors may be
removed with cause by the affirmative vote of the holders of at least seventy- five percent (75%)
of the voting power of all then outstanding shares of capital stock of the corporation entitled to
vote generally at an election of directors, voting together as a single class.
4.8. MEETINGS.
(A) REGULAR MEETINGS. Unless otherwise restricted by the Certificate of Incorporation, regular
meetings of the Board of Directors may be held at any time or date and at any place within or
without the State of Delaware which has been designated by the Board of Directors and publicized
among all directors, either orally or in writing, by telephone, including a voice-messaging system
or other system designed to record and communicate messages, facsimile, telegraph or telex, or by
electronic mail or other electronic means. No further notice shall be required for regular meetings
of the Board of Directors.
(B) SPECIAL MEETINGS. Unless otherwise restricted by the Certificate of Incorporation, special
meetings of the Board of Directors may be held at any time and place within or without the State of
Delaware whenever called by the Chairman of the Board, the President or a majority of the
authorized number of directors.
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(C) MEETINGS BY ELECTRONIC COMMUNICATIONS EQUIPMENT. Any member of the Board of Directors, or
of any committee thereof, may participate in a meeting by means of conference telephone or other
communications equipment by means of which all persons participating in the meeting can hear each
other, and participation in a meeting by such means shall constitute presence in person at such
meeting.
(D) NOTICE OF SPECIAL MEETINGS. Notice of the date, time and place of all special meetings of
the Board of Directors shall be orally or in writing, by telephone, including a voice messaging
system or other system or technology designed to record and communicate messages, facsimile,
telegraph or telex, or by electronic mail or other electronic means, during normal business hours,
at least twenty-four (24) hours before the date and time of the meeting. If notice is sent by U.S.
mail, it shall be sent by first class mail, charges prepaid, at least three (3) days before the
date of the meeting. Notice of any meeting may be waived in writing, or by electronic transmission,
at any time before or after the meeting and will be waived by any director by attendance thereat,
except when the director attends the meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not lawfully called or
convened.
(E) WAIVER OF NOTICE. The transaction of all business at any meeting of the Board of
Directors, or any committee thereof, however called or noticed, or wherever held, shall be as valid
as though had at a meeting duly held after regular call and notice, if a quorum be present and if,
either before or after the meeting, each of the directors not present who did not receive notice
shall sign a written waiver of notice or shall waive notice by electronic transmission. All such
waivers shall be filed with the corporate records or made a part of the minutes of the meeting.
4.9. QUORUM AND VOTING.
(A) Unless the Certificate of Incorporation requires a greater number, a quorum of the Board
of Directors shall consist of a majority of the exact number of directors fixed from time to time
by the Board of Directors in accordance with the Certificate of Incorporation; provided, however,
at any meeting whether a quorum be present or otherwise, a majority of the directors present may
adjourn from time to time until the time fixed for the next regular meeting of the Board of
Directors, without notice other than by announcement at the meeting.
(B) At each meeting of the Board of Directors at which a quorum is present, all questions and
business shall be determined by the affirmative vote of a majority of the directors present, unless
a different vote be required by law, the Certificate of Incorporation or these Amended and Restated
Bylaws.
4.10. ACTION WITHOUT MEETING.
Unless otherwise restricted by the Certificate of Incorporation or these Amended and Restated
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
committee, as the case may be, consent thereto in writing or by electronic transmission, and such
writing or writings or transmission or transmissions are filed with the minutes of proceedings of
the Board of Directors 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.
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4.11. FEES AND COMPENSATION.
Directors shall be entitled to such compensation for their services as may be approved by the
Board of Directors, including, if so approved, by resolution of the Board of Directors, a fixed sum
and expenses of attendance, if any, for attendance at each regular or special meeting of the Board
of Directors and at any meeting of a committee of the Board of Directors. Nothing herein contained
shall be construed to preclude any director from serving the Corporation in any other capacity as
an officer, agent, employee, or otherwise and receiving compensation therefore
4.12. COMMITTEES.
(A) EXECUTIVE COMMITTEE. The Board of Directors may appoint an Executive Committee to consist
of one (1) or more members of the Board of Directors. The Executive Committee, to the extent
permitted by law and provided in the resolution of the Board of Directors shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or authority in reference
to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly
required by the DGCL to be submitted to stockholders for approval, or (ii) adopting, amending or
repealing any bylaw of the Corporation.
(B) OTHER COMMITTEES. The Board of Directors may, from time to time, appoint such other
committees as may be permitted by law. Such other committees appointed by the Board of Directors
shall consist of one (1) or more members of the Board of Directors and shall have such powers and
perform such duties as may be prescribed by the resolution or resolutions creating such committees,
but in no event shall any such committee have the powers denied to the Executive Committee in these
Amended and Restated Bylaws.
(C) TERM. The Board of Directors, subject to any requirements of any outstanding series of
Preferred Stock and the provisions of subsections (a) or (b) of this Bylaw, may at any time
increase or decrease the number of members of a committee or terminate the existence of a
committee. The membership of a committee member shall terminate on the date of his death or
voluntary resignation from the committee or from the Board of Directors. The Board of Directors may
at any time for any reason remove any individual committee member and the Board of Directors may
fill any committee vacancy created by death, resignation, removal or increase in the number of
members of the committee. The Board of Directors may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at any meeting of the
committee, and, in addition, in the absence or disqualification of any member of a committee, the
member or members thereof present at any meeting and not disqualified from voting, whether 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.
(D) MEETINGS. Unless the Board of Directors shall otherwise provide, regular meetings of the
Executive Committee or any other committee appointed pursuant to this Section 4.12 shall be held at
such times and places as are determined by the Board of Directors, or by any such committee, and
when notice thereof has been given to each member of such committee, no further notice of such
regular meetings need be given thereafter. Special meetings of any such
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committee may be held at any place which has been determined from time to time by such
committee, and may be called by any director who is a member of such committee, upon notice to the
members of such committee of the time and place of such special meeting given in the manner
provided for the giving of notice to members of the Board of Directors of the time and place of
special meetings of the Board of Directors. Notice of any special meeting of any committee may be
waived in writing at any time before or after the meeting and will be waived by any director by
attendance thereat, except when the director attends such special meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Unless otherwise provided by the Board of Directors in
the resolutions authorizing the creation of the committee, a majority of the authorized number of
members of any such committee shall constitute a quorum for the transaction of business, and the
act of a majority of those present at any meeting at which a quorum is present shall be the act of
such committee.
4.13. ORGANIZATION.
At every meeting of the directors, the Chairman of the Board of Directors, or, if a Chairman
has not been appointed or is absent, the President (if a director), or if the President is absent,
the most senior Vice President (if a director), or, in the absence of any such person, a chairman
of the meeting chosen by a majority of the directors present, shall preside over the meeting. The
Secretary, or in his absence, any Assistant Secretary directed to do so by the President, shall act
as secretary of the meeting.
ARTICLE V
OFFICERS
5.1. OFFICERS DESIGNATED.
The officers of the Corporation shall include, if and when designated by the Board of
Directors, the Chief Executive Officer, the President, one or more Vice Presidents, the Secretary,
the Chief Financial Officer, the Treasurer and the Controller, all of whom shall be elected at the
annual organizational meeting of the Board of Directors. The Board of Directors may also appoint
one or more Assistant Secretaries, Assistant Treasurers, Assistant Controllers and such other
officers and agents with such powers and duties as it shall deem necessary. The Board of Directors
may assign such additional titles to one or more of the officers as it shall deem appropriate. Any
one person may hold any number of offices of the Corporation at any one time unless specifically
prohibited therefrom by law. The salaries and other compensation of the officers of the Corporation
shall be fixed by or in the manner designated by the Board of Directors.
5.2. ELECTION.
The Chief Executive Officer, President, Treasurer and Secretary shall be elected annually by
the Board of Directors at its first meeting following the annual meeting of stockholders. Other
officers may be appointed by the Board of Directors at such meeting or at any other meeting.
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5.3. QUALIFICATION.
No officer need be a stockholder. Any two or more offices may be held by the same person.
5.4. TENURE AND DUTIES OF OFFICERS.
(A) GENERAL. All officers shall hold office at the pleasure of the Board of Directors and
until their successors shall have been duly elected and qualified, unless sooner removed. If the
office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of
Directors.
(B) DUTIES OF CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall preside at all
meetings of the stockholders and at all meetings of the Board of Directors, unless the Chairman of
the Board of Directors has been appointed and is present. The Chief Executive Officer shall,
subject to the control of the Board of Directors, have general supervision, direction and control
of the business and officers of the Corporation and shall be responsible for overall strategic
planning and the development of strategic relationships, for corporate financing, for providing
management oversight of the President. The Chief Executive Officer shall perform other duties
commonly incident to the office and shall also perform such other duties and have such other
powers, as the Board of Directors shall designate from time to time.
(C) DUTIES OF PRESIDENT. Subject to the supervisory powers of the Chief Executive Officer, the
President shall be responsible for the day-to-day management of the Corporation, and for providing
support to the Chief Executive Officer in the execution of his or her duties. In the absence or
disability of the Chief Executive Officer, the President, if any, shall also perform all the duties
of the Chief Executive Officer, and when so acting shall have all the powers of, and be subject to
all the restrictions upon, the Chief Executive Officer. The President shall have the general powers
and duties of management usually vested in the president of a corporation with a chief executive
officer, and shall have such other powers and perform such other duties as from time to time may be
prescribed by the Board of Directors, these Amended and Restated Bylaws, the Chief Executive
Officer or the Chairman of the Board. The office of the President may be filled by the Chief
Executive Officer.
(D) DUTIES OF VICE PRESIDENTS. The Vice Presidents may assume and perform the duties of the
President in the absence or disability of the President or whenever the office of President is
vacant. The Vice Presidents shall perform other duties commonly incident to their office and shall
also perform such other duties and have such other powers as the Board of Directors or the
President shall designate from time to time.
(E) DUTIES OF SECRETARY. The Secretary shall attend all meetings of the stockholders and of
the Board of Directors and shall record all acts and proceedings thereof in the minute book of the
Corporation. The Secretary shall give notice in conformity with these Amended and Restated Bylaws
of all meetings of the stockholders and of all meetings of the Board of Directors and any committee
thereof requiring notice. The Secretary shall perform all other duties provided for in these
Amended and Restated Bylaws and other duties commonly incident to the office and shall also perform
such other duties and have such other powers, as the Board of Directors shall designate from time
to time. The President may direct any Assistant Secretary to assume and perform the duties of the
Secretary in the absence or disability of the Secretary, and each Assistant Secretary shall perform
other duties commonly incident to the office and shall also
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perform such other duties and have such other powers as the Board of Directors or the
President shall designate from time to time.
(F) DUTIES OF CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall keep or cause to be
kept the books of account of the Corporation in a thorough and proper manner and shall render
statements of the financial affairs of the Corporation in such form and as often as required by the
Board of Directors or the President. The Chief Financial Officer, subject to the order of the Board
of Directors, shall have the custody of all funds and securities of the Corporation. The Chief
Financial Officer shall perform other duties commonly incident to the office and shall also perform
such other duties and have such other powers as the Board of Directors or the President shall
designate from time to time.
(G) DUTIES OF TREASURER. The Treasurer shall perform such duties and shall have such powers
as may from time to time be assigned by the Board of Directors or the Chief Executive Officer. In
addition, the Treasurer shall perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and power to keep and be responsible for
all funds and securities of the corporation, to deposit funds of the corporation in depositories
selected in accordance with these Bylaws, to disburse such funds as ordered by the Board of
Directors, to make proper accounts of such funds, and to render as required by the Board of
Directors statements of all such transactions and of the financial condition of the corporation.
The Chief Executive Officer may direct the Treasurer or any Assistant Treasurer, or the Controller
or any Assistant Controller, to assume and perform the duties of the Chief Financial Officer in the
absence or disability of the Chief Financial Officer, and each Treasurer and Assistant Treasurer
and each Controller and Assistant Controller shall perform other duties commonly incident to the
office and shall also perform such other duties and have such other powers as the Board of
Directors or the President shall designate from time to time.
5.5. 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.
5.6. RESIGNATIONS.
Any officer may resign at any time by giving notice in writing or by electronic transmission
to the Board of Directors or to the President or to the Secretary. Any such resignation shall be
effective when received by the person or persons to whom such notice is given, unless a later time
is specified therein, in which event the resignation shall become effective at such later time.
Unless otherwise specified in such notice, the acceptance of any such resignation shall not be
necessary to make it effective. Any resignation shall be without prejudice to the rights, if any,
of the Corporation under any contract with the resigning officer.
5.7. REMOVAL.
Any officer may be removed from office at any time, either with or without cause, by the
affirmative vote of a majority of the directors in office at the time, or by the unanimous written
consent of the directors in office at the time.
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5.8. SALARIES.
Officers of the Corporation shall be entitled to such salaries, compensation or reimbursement
as shall be fixed or allowed from time to time by the Board of Directors.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED
BY THE CORPORATION
6.1. EXECUTION OF CORPORATE INSTRUMENTS.
The Board of Directors may, in its discretion, determine the method and designate the
signatory officer or officers, or other person or persons, to execute on behalf of the Corporation
any corporate instrument or document, or to sign on behalf of the Corporation the corporate name
without limitation, or to enter into contracts on behalf of the Corporation, except where otherwise
provided by law or these Amended and Restated Bylaws, and such execution or signature shall be
binding upon the Corporation. All checks and drafts drawn on banks or other depositaries on funds
to the credit of the Corporation or in special accounts of the Corporation shall be signed by such
person or persons as the Board of Directors shall authorize so to do. Unless authorized or
ratified by the Board of Directors or within the agency power of an officer, no officer, agent or
employee shall have any power or authority to bind the Corporation by any contract or engagement or
to pledge its credit or to render it liable for any purpose or for any amount.
6.2. VOTING OF SECURITIES OWNED BY THE CORPORATION.
All stock and other securities of other corporations owned or held by the Corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies with respect thereto
shall be executed, by the person authorized so to do by resolution of the Board of Directors, or,
in the absence of such authorization, by the Chairman of the Board of Directors, the Chief
Executive Officer, the President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
7.1. FORM AND EXECUTION OF CERTIFICATES.
Certificates for the shares of stock of the Corporation shall be in such form as is consistent
with the Certificate of Incorporation and applicable law. Every holder of stock in the Corporation
shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman
of the Board of Directors, the Chief Executive Officer, the President or any Vice President and by
the Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary, certifying the number
of shares owned by him in the Corporation. Any or all of the signatures on the certificate may be
facsimiles. In case any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent,
or registrar before such certificate is issued, it may be issued with the same effect as if he were
such officer, transfer agent, or registrar at the date of issue. Each certificate shall state
15
upon the face or back thereof, in full or in summary, all of the powers, designations,
preferences, and rights, and the limitations or restrictions of the shares authorized to be issued
or shall, except as otherwise required by law, set forth on the face or back 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 and/or rights. Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates pursuant to this
section or otherwise required by law or with respect to this section 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 and/or rights.
7.2. LOST CERTIFICATES.
A new certificate or certificates shall be issued in place of any certificate or certificates
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. The Corporation may require, as a condition precedent to the issuance of a
new certificate or certificates, the owner of such lost, stolen, or destroyed certificate or
certificates, or the owner’s legal representative, to agree to indemnify the Corporation in such
manner as it shall require or to give the Corporation a surety bond in such form and amount 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.
7.3. TRANSFERS.
(A) Transfers of record of shares of stock of the Corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, and upon the surrender of a
properly endorsed certificate or certificates for a like number of shares.
(B) The Corporation shall have power to enter into and perform any agreement with any number
of stockholders of any one or more classes of stock of the Corporation to restrict the transfer of
shares of stock of the Corporation of any one or more classes owned by such stockholders in any
manner not prohibited by the DGCL.
7.4. FIXING RECORD DATES.
(A) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix, in
advance, 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, subject
to applicable law, not be more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or if notice is waived, at the
close of business on the day next preceding the day on which the meeting is held. A determination
of stockholders of record entitled to notice of or to vote at a meeting of stockholders
16
shall apply to any adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
(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 of Directors may fix, in advance, 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 sixty (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.
7.5. REGISTERED STOCKHOLDERS.
The Corporation shall be entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or shares on the part
of any other person whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
8.1. EXECUTION OF OTHER SECURITIES.
All bonds, debentures and other corporate securities of the Corporation, other than stock
certificates (covered in Section 7.1), may be signed by the Chairman of the Board of Directors, the
Chief Executive Officer, the President or any Vice President, or such other person as may be
authorized by the Board of Directors, and the corporate seal impressed thereon or a facsimile of
such seal imprinted thereon and attested by the signature of the Secretary or an Assistant
Secretary, or the Chief Financial Officer or Treasurer or an Assistant Treasurer; provided,
however, that where any such bond, debenture or other corporate security shall be authenticated by
the manual signature, or where permissible facsimile signature, of a trustee under an indenture
pursuant to which such bond, debenture or other corporate security shall be issued, the signatures
of the persons signing and attesting the corporate seal on such bond, debenture or other corporate
security may be the imprinted facsimile of the signatures of such persons. Interest coupons
appertaining to any such bond, debenture or other corporate security, authenticated by a trustee as
aforesaid, shall be signed by the Treasurer or an Assistant Treasurer of the Corporation or such
other person as may be authorized by the Board of Directors, or bear imprinted thereon the
facsimile signature of such person. In case any officer who shall have signed or attested any bond,
debenture or other corporate security, or whose facsimile signature shall appear thereon or on any
such interest coupon, shall have ceased to be such officer before the bond, debenture or other
corporate security so signed or attested shall have been delivered, such bond, debenture or other
corporate security nevertheless may be adopted by the Corporation and issued and delivered as
though the person who signed the same or whose facsimile signature shall have been used thereon had
not ceased to be such officer of the Corporation.
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ARTICLE IX
DIVIDENDS
9.1. DECLARATION OF DIVIDENDS.
Dividends upon the capital stock of the Corporation, subject to the provisions of the
Certificate of Incorporation and applicable law, if any, may be declared by the Board of Directors
pursuant to law at any regular or special meeting. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the Certificate of Incorporation and
applicable law.
9.2. DIVIDEND RESERVE.
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 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 maintaining any property of the Corporation, or for such other
purpose as the Board of Directors shall think conducive to the interests of the Corporation, and
the Board of Directors may modify or abolish any such reserve in the manner in which it was
created.
ARTICLE X
FISCAL YEAR
10.1. FISCAL YEAR.
The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
ARTICLE XI
INDEMNIFICATION
11.1. INDEMNIFICATION OF DIRECTORS, EXECUTIVE OFFICERS, OTHER OFFICERS, EMPLOYEES AND OTHER
AGENTS.
(A) DIRECTORS AND EXECUTIVE OFFICERS. The Corporation shall indemnify its directors and
executive officers (for the purposes of this Article XI, “executive officers” shall have the
meaning defined in Rule 3b-7 promulgated under the 1934 Act) to the fullest extent not prohibited
by the DGCL or any other applicable law; provided, however, that the Corporation may modify the
extent of such indemnification by individual contracts with its directors and executive officers;
and, provided, further, that the Corporation shall not be required to indemnify any director or
executive officer in connection with any proceeding (or part thereof) initiated by such person
unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by
the Corporation, in its sole discretion, pursuant to the powers vested
18
in the Corporation under the DGCL or any other applicable law or (iv) such indemnification is
required to be made under subsection (d).
(B) OTHER OFFICERS, EMPLOYEES AND OTHER AGENTS. The Corporation shall have power to indemnify
its other officers, employees and other agents as set forth in the DGCL or any other applicable
law. The Board of Directors shall have the power to delegate the
determination of whether indemnification shall be given to any such person to such officers
or other persons as the Board of Directors shall determine
(C) EXPENSES. The Corporation shall advance to any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a
director or executive officer, of the Corporation, or is or was serving at the request of the
Corporation as a director or executive officer of another corporation, partnership, joint venture,
trust or other enterprise, prior to the final disposition of the proceeding, promptly following
request therefor, all expenses incurred by any director or executive officer in connection with
such proceeding provided, however, that if the DGCL requires, an advancement of expenses incurred
by a director or executive officer in his or her capacity as a director or executive officer (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 delivery to the
Corporation 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 by final judicial decision
from which there is no further right to appeal (hereinafter a “final adjudication”) that such
indemnitee is not entitled to be indemnified for such expenses under this Section 11.1 or
otherwise. Notwithstanding the foregoing, unless otherwise determined pursuant to paragraph (e) of
this Section 11.1, no advance shall be made by the Corporation to an executive officer of the
Corporation (except by reason of the fact that such executive officer is or was a director of the
Corporation in which event this paragraph shall not apply) in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, if a determination is reasonably and
promptly made (i) the Board of Directors by a majority vote of directors who were not parties to
the proceeding, even if not a quorum, or (ii) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, or (iii) if there are no such
directors, or such directors so direct, by independent legal counsel in a written opinion, that the
facts known to the decision-making party at the time such determination is made demonstrate clearly
and convincingly that such person acted in bad faith or in a manner that such person did not
believe to be in or not opposed to the best interests of the Corporation.
(D) ENFORCEMENT. Without the necessity of entering into an express contract, all rights to
indemnification and advances to directors and executive officers under this Bylaw shall be deemed
to be contractual rights and be effective to the same extent and as if provided for in a contract
between the Corporation and the director or executive officer. Any right to indemnification or
advances granted by this Section 11.1 to a director or executive officer shall be enforceable by or
on behalf of the person holding such right in any court of competent jurisdiction if (i) the claim
for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such
claim is made within ninety (90) days of request therefor. The claimant in such enforcement action,
if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting the
claim. In connection with any claim for indemnification, the Corporation shall be entitled to raise
as a defense to any such action that the claimant has not met the standards of
19
conduct that make it permissible under the DGCL or any other applicable law for the
Corporation to indemnify the claimant for the amount claimed. In connection with any claim by an
executive officer of the Corporation (except in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such executive officer is or
was a director of the Corporation) for advances, the Corporation shall be entitled to raise a
defense as to any such action clear and convincing evidence that such person acted in bad faith or
in a manner that such person did not believe to be in or not opposed to the best interests of the
Corporation, or with respect to any criminal action or proceeding that such person acted without
reasonable cause to believe that his conduct was lawful. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because the executive officer or director has met the applicable
standard of conduct set forth in the DGCL or any other applicable law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that claimant has not met the applicable standard of conduct
(E) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by this Bylaw shall not be
exclusive of any other right which such person may have or hereafter acquire under any applicable
statute, provision of the Amended and Restated Certificate of Incorporation, Amended and Restated
Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action
in such person’s official capacity and as to action in another capacity while holding office. The
Corporation is specifically authorized to enter into individual contracts with any or all of its
directors, officers, employees or agents respecting indemnification and advances, to the fullest
extent not prohibited by the DGCL, or by any other applicable law.
(F) SURVIVAL OF RIGHTS. The rights conferred on any person by this Bylaw shall continue as to
a person who has ceased to be a director or executive officer and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(G) INSURANCE. To the fullest extent permitted by the DGCL or any other applicable law, the
Corporation, upon approval by the Board of Directors, may purchase insurance on behalf of any
person required or permitted to be indemnified pursuant to this Section 11.1.
(H) AMENDMENTS. Any repeal or modification of this Section 11.1 shall only be prospective and
shall not affect the rights under this Bylaw in effect at the time of the alleged occurrence of any
action or omission to act that is the cause of any proceeding against any agent of the Corporation.
(I) SAVING CLAUSE. If this Bylaw or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each
director and executive officer to the full extent not prohibited by any applicable portion of this
Section 11.1 that shall not have been invalidated, or by any other applicable law. If this Section
11.1 shall be invalid due to the application of the indemnification provisions of another
jurisdiction, then the Corporation shall indemnify each director and executive officer to the full
extent under any other applicable law.
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(J) CERTAIN DEFINITIONS. For the purposes of this Bylaw, the following definitions shall
apply: (1) The term “proceeding” shall be broadly construed and shall include, without limitation,
the investigation, preparation, prosecution, defense, settlement, arbitration and appeal of, and
the giving of testimony in, any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative. (2) The term “expenses” shall be broadly
construed and shall include, without limitation, court costs, attorneys’ fees, witness fees, fines,
amounts paid in settlement or judgment and any other costs and expenses of any nature or kind
incurred in connection with any proceeding. (3) The term “Corporation” shall include, in addition
to the corporation, any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in
the same position under the provisions of this Section 11.1 with respect to the resulting or
surviving corporation as he would have with respect to such constituent corporation if its separate
existence had continued. (4) References to a “director,” “executive officer,” “officer,”
“employee,” or “agent” of the Corporation shall include, without limitation, situations where such
person is serving at the request of the Corporation as, respectively, a director, executive
officer, officer, employee, trustee or agent of another corporation, partnership, joint venture,
trust or other enterprise. (5) References to “other enterprises” shall include employee benefit
plans; references to “fines” shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to “serving at the request of the Corporation “ shall include
any service as a director, officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a
manner he 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 interests
of the Corporation “ as referred to in this Section 11.1.
ARTICLE XII
NOTICES
12.1. NOTICES.
(A) NOTICE TO STOCKHOLDERS. Written notice to stockholders of stockholder meetings shall be
given as provided in Section 3.4 herein. Without limiting the manner by which notice may otherwise
be given effectively to stockholders under any agreement or contract with such stockholder, and
except as otherwise required by law, written notice to stockholders for purposes other than
stockholder meetings may be sent by U.S. mail or nationally recognized overnight courier, or by
facsimile, telegraph or telex or by electronic mail or other electronic means
(B) NOTICE TO DIRECTORS. Any notice required to be given to any director may be given by the
method stated in subsection (a), as otherwise provided in these Amended and Restated Bylaws, or by
overnight delivery service, facsimile, telex or telegram, except that such notice other than one
which is delivered personally shall be sent to such address as such director
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shall have filed in writing with the Secretary, or, in the absence of such filing, to the last
known post office address of such director.
(C) AFFIDAVIT OF MAILING. An affidavit of mailing, executed by a duly authorized and competent
employee of the Corporation or its transfer agent appointed with respect to the class of stock
affected, or other agent, specifying the name and address or the names and addresses of the
stockholder or stockholders, or director or directors, to whom any such notice or notices was or
were given, and the time and method of giving the same, shall in the absence of fraud, be prima
facie evidence of the facts therein contained.
(D) METHODS OF NOTICE. It shall not be necessary that the same method of giving notice be
employed in respect of all recipients of notice, but one permissible method may be employed in
respect of any one or more, and any other permissible method or methods may be employed in respect
of any other or others.
(E) NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL. Whenever notice is required to be
given, under any provision of law or of the Certificate of Incorporation or Amended and Restated
Bylaws of the Corporation, 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 which 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 under
any provision of the DGCL, 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.
(F) NOTICE TO STOCKHOLDERS SHARING AN ADDRESS. Except as otherwise prohibited under the DGCL,
any notice given under the provisions of the DGCL, the Certificate of Incorporation or the Amended
and Restated Bylaws 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.
Such consent shall have been deemed to have been given if such stockholder fails to object in
writing to the Corporation within 60 days of having been given notice by the Corporation of its
intention to send the single notice. Any consent shall be revocable by the stockholder by written
notice to the Corporation.
ARTICLE XIII
AMENDMENTS
13.1. AMENDMENTS.
These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be
adopted by the Board of Directors or by the stockholders as provided in the Certificate of
Incorporation.
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