EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
GEOVAX LABS, INC.
ARTICLE I. Name
The name of the Corporation is: GeoVax Labs, Inc.
ARTICLE II. Agent
The Corporations registered office in the State of Delaware is to be located at 1209 Orange
Street, Wilmington, New Castle County, Delaware 19801. The registered agent in charge thereof is:
The Corporation Trust Company.
ARTICLE III. Purpose
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware.
ARTICLE IV. Share Structure
The total number of shares of all classes of stock which the Corporation shall have the
authority to issue is 910,000,000 shares, which are divided into two classes consisting of:
(a) 900,000,000 shares of Common Stock, par value $0.001 per share, and (b) 10,000,000 shares of
Preferred Stock, par value $0.01 per share.
The designations, voting powers, preferences and relative, participating, optional or other
special rights, and qualification, limitations or restrictions of the above classes of stock are as
follows:
4.1
Preferred Stock
.
(a)
Issuance in Series
. Shares of Preferred Stock may be issued in one or more
series at such time or times, and for such consideration or considerations as the Board of
Directors may determine. All shares of any one series of Preferred Stock will be identical
with each other in all respects, except that shares of one series issued at different times
may differ as to dates from which dividends thereon may be cumulative. All series will rank
equally and be identical in all respects except to the extent
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differentiated by the Board of
Directors in the certificate of designations, as permitted by the following paragraph.
(b)
Authority of the Board with Respect to Series
. The Board of Directors is
authorized, at any time and from time to time, to provide for the issuance of shares of
Preferred Stock in one or more series with such designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations or
restrictions thereof as are stated and expressed in a certificate of designations adopted by
the Board of Directors and filed with the Delaware Secretary of State, and as are not stated
and expressed in this Certificate of Incorporation or any amendment hereto including, but
not limited to, determination of any of the following:
(i) the distinctive serial designation and the number of shares constituting a
series;
(ii) the dividend rate or rates, whether dividends are cumulative and, if so,
from which date, the payment date or dates for dividends, and the participating or
other special rights, if any, with respect to dividends;
(iii) the voting powers, full or limited, if any, of the shares of the series;
(iv) whether the shares are redeemable and, if so, the price or prices at
which, and the terms and conditions on which, the shares may be redeemed;
(v) the amount or amounts payable upon the shares in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation prior to any
payment or distribution of the assets of the Corporation to any class or classes of
stock of the Corporation ranking junior to the Preferred Stock;
(vi) whether the shares are entitled to the benefit of a sinking or retirement
fund to be applied to the purchase or redemption of shares of a series and, if so
entitled, the amount of the fund and the manner of its application, including the
price or prices at which the shares may be redeemed or purchased through the
application of the fund;
(vii) whether the shares are convertible into, or exchangeable for, shares of
any other class or classes of stock of the Corporation and, if so convertible or
exchangeable, the conversion price or prices, or the rates of exchange, and the
adjustments thereof, if any, at which the conversion or exchange may be made, and
any other terms and conditions of the conversion or exchange; and
(viii) any other preferences, privileges and powers, and relating
participating, optional or other special rights, and qualifications, limitations or
restrictions of a series, as the Board of Directors may deem advisable and as are
not inconsistent with the provisions of this Certificate of Incorporation.
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(c)
Dividends
. Before any dividends on any class or classes of stock of the
Corporation ranking junior to the Preferred Stock (other than dividends payable in shares of any
class or classes of stock of the Corporation ranking junior to the Preferred Stock) may be declared
or paid or set apart for payment, the holders of shares of Preferred Stock of each series are
entitled to such cash dividends, but only when and as declared by the Board of Directors out of
funds legally available therefor, as they may be adopted by the Board of Directors providing for
the issue of the series, payable on such dates in each year as may be fixed in the resolution or
resolutions. The term class or classes of stock of the Corporation ranking junior to the
Preferred Stock means the Common Stock and any other class or classes of stock of the Corporation
hereafter authorized which rank junior to the Preferred Stock as to dividends or upon liquidation.
(d)
Reacquired Shares
. Shares of Preferred Stock which have been issued and
reacquired in any manner by the Corporation will have the status of authorized and unissued shares
of Preferred Stock and may be reissued.
(e)
Voting Rights
. Unless and except to the extent otherwise required by law or
provided in the certificate of designations creating any series of Preferred Stock the holders of
the Preferred Stock shall have no voting power with respect to any matter whatsoever.
4.2
Common Stock
.
(a)
Dividends
. Subject to the preferential rights of the Preferred Stock, the
holders of the Common Stock are entitled to receive, to the extent permitted by law, such
dividends as may be declared from time to time by the Board of Directors.
(b)
Liquidation
. In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the Corporation, after distribution in
full of the preferential amounts, if any, to be distributed to the holders of shares of
Preferred Stock, holders of Common Stock shall be entitled to receive all of the remaining
assets of the Corporation of whatever kind available for distribution to Stockholders
ratably in proportion to the number of shares of Common Stock held by them respectively.
The Board of Directors may distribute in kind to the holders of Common Stock such remaining
assets of the Corporation or may sell, transfer or otherwise dispose of all or any part of
such remaining assets to any other corporation, trust or other entity and receive payment
therefor in cash, stock or obligations of such other corporation, trust or other entity, or
any combination thereof, and may sell all or any part of the consideration so received and
distribute any balance thereof in kind to holders of Common Stock. The merger or
consolidation of the Corporation into or with any other corporation, or the merger of any
other corporation into it, or any purchase or redemption of shares of stock of the
Corporation of any class, shall not be deemed to be a dissolution, liquidation or winding up
of the Corporation for the purposes of this paragraph.
(c)
Voting Rights
. Except as may be otherwise required by law or this
Certificate of Incorporation, each holder of Common Stock has one vote in respect of
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each
share of stock held by him or record on the books of the corporation on all matters voted
upon by the Stockholders.
(d)
No Pre-emptive Rights
. The Stockholders shall have no pre-emptive rights
to acquire any securities of the Corporation.
(e)
No Cumulative Voting
. The Stockholders of the Corporation are not entitled
to cumulative voting in connection with the shares of the Corporations capital stock.
ARTICLE V. Existence
The Corporation shall have perpetual existence.
ARTICLE VI. Section 203 Election
The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law
of the State of Delaware.
ARTICLE VII. Incorporator
The name and mailing address of the incorporator is as follows:
Clinton D. Richardson
Womble Carlyle Sandridge & Rice, PLLC
Suite 3500, 1201 West Peachtree Street
Atlanta, Georgia 30309-3460
IN WITNESS WHEREOF, the undersigned incorporator of the Corporation hereby acknowledges that
this Certificate of Incorporation is his act and deed, taken as of the 17th day of June, 2008, and
that the facts stated herein are true.
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BY:
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CLINTON D. RICHARDSON
,
Incorporator
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4
EXHIBIT 3.2
BYLAWS
OF
GEOVAX LABS, INC.
Effective June 17, 2008
Table of Contents
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Page
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ARTICLE I Offices
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1
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Section 1.1. Principal and Registered Offices
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1
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Section 1.2. Other Offices
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1
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ARTICLE II Meetings of Stockholders
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1
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Section 2.1. Annual Meetings
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1
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Section 2.2. Special Meetings
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1
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Section 2.3. Notice of Meetings
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1
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Section 2.4. Adjournments
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1
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Section 2.5. Quorum
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2
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Section 2.6. Organization
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2
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Section 2.7. Voting; Proxies
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2
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Section 2.8. Fixing Date for Determination of Stockholders of Record
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3
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Section 2.9. List of Stockholders Entitled to Vote
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3
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Section 2.10. Action by Written Consent of Stockholders
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4
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Section 2.11. Inspectors of Election
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4
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Section 2.12. Conduct of Meetings
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4
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ARTICLE III Board of Directors
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5
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Section 3.1. General Powers
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5
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Section 3.2. Number; Qualifications
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5
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Section 3.3. Election; Resignation; Vacancies
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5
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Section 3.4. Regular Meetings
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6
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Section 3.5. Special Meetings
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6
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Section 3.6. Telephonic Meetings Permitted
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6
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Section 3.7. Quorum; Vote Required for Action
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6
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Section 3.8. Organization
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6
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Section 3.9. Action by Unanimous Consent of Directors
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6
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ARTICLE IV Committees
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7
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Section 4.1. Committees
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7
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Section 4.2. Committee Rules
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7
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Section 4.3. Minutes
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7
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ARTICLE V Officers
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7
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Section 5.1. Officers; Election; Qualifications;
Term of Office; Resignation; Removal; Vacancies
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7
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Section 5.2. Appointing Attorneys and Agents; Voting Securities
of Other Entities
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8
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ARTICLE VI Stock
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8
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Section 6.1. Certificates
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8
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Section 6.2. Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates
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8
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i
Table of Contents
(continued)
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Page
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ARTICLE VII Indemnification and Advancement of Expenses
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9
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Section 7.1. Right to Indemnification.
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9
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Section 7.2. Advancement of Expenses
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10
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Section 7.3. Non-Exclusivity of Rights
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10
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Section 7.4. Insurance
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10
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Section 7.5. Definitions.
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10
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Section 7.6. Continuation of Indemnification and Advancement
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11
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ARTICLE VIII Miscellaneous
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11
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Section 8.1. Fiscal Year
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11
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Section 8.2. Seal
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11
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Section 8.3. Manner of Notice
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11
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Section 8.4. Waiver of Notice of Meetings of Stockholders,
Directors and Committees
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12
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Section 8.5. Form of Records
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12
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Section 8.6. Amendment of By-Laws
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ii
BY-LAWS OF
GEOVAX LABS, INC.
ARTICLE I
Offices
Section 1.1.
Principal and Registered Offices
. The principal office of the
corporation shall be located at such place as the Board of Directors may specify from time to time.
The registered office of the corporation shall be located at 1209 Orange Street, Wilmington, New
Castle County, Delaware 19801.
Section 1.2.
Other Offices
. The corporation may have offices at such other places,
either within or without the State of Delaware, as the Board of Directors may from time to time
determine.
ARTICLE II
Meetings of Stockholders
Section 2.1.
Annual Meetings
. If required by applicable law, an annual meeting of
stockholders shall be held for the election of directors at such date, time and place, if any,
either within or without the State of Delaware, as may be designated by resolution of the Board of
Directors from time to time. Any other proper business may be transacted at the annual meeting.
Section 2.2.
Special Meetings
. Special meetings of stockholders for any purpose or
purposes may be called at any time by the Chairman of the Board, the President or by order of the
Board of Directors, but such special meetings may not be called by any other person or persons.
Business transacted at any special meeting of stockholders shall be limited to the purposes stated
in the notice.
Section 2.3.
Notice of Meetings
. Whenever stockholders are required or permitted to
take any action at a meeting, a written notice of the meeting shall be given that shall state the
place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Unless otherwise provided by law, the certificate of
incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor
more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at
such meeting. If mailed, such notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the stockholder at such stockholders address as it
appears on the records of the corporation.
Section 2.4.
Adjournments
. Any meeting of stockholders, annual or special, may
adjourn from time to time to reconvene at the same or some other place, and notice need not be
given of any such adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting
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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, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 2.5.
Quorum
. Except as otherwise provided by law, the certificate of
incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy
of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at
the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum,
the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from
time to time in the manner provided in Section 2.4 of these by-laws until a quorum shall attend.
Shares of its own stock belonging to the corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other corporation is held,
directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for
quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation
or any subsidiary of the corporation to vote stock, including but not limited to its own stock,
held by it in a fiduciary capacity.
Section 2.6.
Organization
. Meetings of stockholders shall be presided over by the
Chairman of the Board, if any, or in his or her absence by the Vice Chairman of the Board, if any,
or in his or her absence by the President, or in his or her absence by a Vice President, or in the
absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the
absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any
person to act as secretary of the meeting.
Section 2.7.
Voting; Proxies
. Except as otherwise provided by or pursuant to the
provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of
stockholders shall be entitled to one vote for each share of stock held by such stockholder which
has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of
stockholders or to express consent to corporate action in writing without a meeting may authorize
another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a longer period. A proxy
shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and voting in person or by delivering to
the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date.
Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders
for the election of directors at which a quorum is present a plurality of the votes cast shall be
sufficient to elect. All other elections and questions presented to the stockholders at a meeting
at which a quorum is present shall, unless otherwise provided by the certificate of incorporation,
these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or
applicable law or pursuant to any regulation applicable to the corporation or its securities, be
decided by the affirmative vote of the
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holders of a majority in voting power of the shares of stock of the corporation which are
present in person or by proxy and entitled to vote thereon.
Section 2.8.
Fixing Date for Determination of Stockholders of Record
. 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, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which 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: (1) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten
(10) days before the date of such meeting; (2) in the case of determination of stockholders
entitled to express consent to corporate action in writing without a meeting, shall not be more
than ten (10) days from the date upon which the resolution fixing the record date is adopted by the
Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days
prior to such other action. If no record date is fixed: (1) 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; (2) the
record date for determining stockholders entitled to express consent to corporate action in writing
without a meeting, when no prior action of the Board of Directors is required by law, shall be the
first date on which a signed written consent setting forth the action taken or proposed to be taken
is delivered to the corporation in accordance with applicable law, or, if prior action by the Board
of Directors is required by law, shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action; and (3) the record date for determining
stockholders for any other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto. 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 the adjourned
meeting.
Section 2.9.
List of Stockholders Entitled to Vote
. The officer who has charge of the
stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible
electronic network, provided that the information required to gain access to such list is provided
with the notice of meeting or (ii) during ordinary business hours at the principal place of
business of the corporation. The list of stockholders must also be open to examination at the
meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall
be the only evidence as to who are the stockholders entitled to examine the list of stockholders
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required by this Section 2.9 or to vote in person or by proxy at any meeting of stockholders.
Section 2.10.
Action by Written Consent of Stockholders
. Unless otherwise restricted
by the certificate of incorporation, any action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or an officer or agent
of the corporation having custody of the book in which minutes of proceedings of stockholders are
recorded. Delivery made to the corporations registered office shall be by hand or by certified or
registered mail, return receipt requested. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall, to the extent required by law, be
given to those stockholders who have not consented in writing and who, if the action had been taken
at a meeting, would have been entitled to notice of the meeting if the record date for such meeting
had been the date that written consents signed by a sufficient number of holders to take the action
were delivered to the corporation.
Section 2.11.
Inspectors of Election
. The corporation may, and shall if required by
law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may
be employees of the corporation, to act at the meeting or any adjournment thereof and to make a
written report thereof. The corporation may designate one or more persons as alternate inspectors
to replace any inspector who fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of stockholders, the person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of his or her ability. The inspector
or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock
of the corporation outstanding and the voting power of each such share, (ii) determine the shares
of capital stock of the corporation represented at the meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the inspectors, and (v)
certify their determination of the number of shares of capital stock of the corporation represented
at the meeting and such inspectors count of all votes and ballots. Such certification and report
shall specify such other information as may be required by law. In determining the validity and
counting of proxies and ballots cast at any meeting of stockholders of the corporation, the
inspectors may consider such information as is permitted by applicable law. No person who is a
candidate for an office at an election may serve as an inspector at such election.
Section 2.12.
Conduct of Meetings
. The date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote at a meeting shall be announced
at the meeting by the person presiding over the meeting. The Board
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of Directors may adopt by resolution such rules and regulations for the conduct of the meeting
of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules
and regulations as adopted by the Board of Directors, the person presiding over any meeting of
stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe
such rules, regulations and procedures and to do all such acts as, in the judgment of such
presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations
or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of
the meeting, may include, without limitation, the following: (i) the establishment of an agenda or
order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting
and the safety of those present; (iii) limitations on attendance at or participation in the meeting
to stockholders of record of the corporation, their duly authorized and constituted proxies or such
other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to
the meeting after the time fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. The presiding person at any meeting of
stockholders, in addition to making any other determinations that may be appropriate to the conduct
of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or
business was not properly brought before the meeting and if such presiding person should so
determine, such presiding person shall so declare to the meeting and any such matter or business
not properly brought before the meeting shall not be transacted or considered. Unless and to the
extent determined by the Board of Directors or the person presiding over the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of parliamentary
procedure.
ARTICLE III
Board of Directors
Section 3.1.
General Powers
. The business and affairs of the corporation shall be
managed by the Board of Directors except as otherwise provided by law, by the certificate of
incorporation of the corporation or by these bylaws.
Section 3.2.
Number; Qualifications
. The Board of Directors shall consist of one or
more members, the number thereof to be determined from time to time by resolution of the Board of
Directors; provided, however that at such time as the corporation has more than one stockholder the
number of directors fixed by the Board of Directors shall not be less than three or more than nine.
Directors need not be stockholders of the corporation.
Section 3.3.
Election; Resignation; Vacancies
. The Board of Directors shall initially
consist of the persons named as directors in the certificate of incorporation or elected by the
incorporator of the corporation, and each director shall hold office until such directors
successor is elected and qualified or until such directors earlier death, resignation or removal.
At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders
shall elect directors each of whom shall hold office until his or her successor is duly elected and
qualified, subject to such directors earlier death, resignation, disqualification or removal. Any
director may resign at any time upon
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notice to the corporation. Unless otherwise provided by law or the certificate of
incorporation, any newly created directorship or any vacancy occurring in the Board of Directors
for any cause may be filled by a majority of the remaining members of the Board of Directors,
although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of
stockholders, and each director so elected shall hold office until the expiration of the term of
office of the director whom he or she has replaced or until his or her successor is elected and
qualified.
Section 3.4.
Regular Meetings
. The annual meeting of the Board of Directors for the
purpose of electing officers and transacting such other business as may be brought before the
meeting shall be held immediately following the annual meeting of the stockholders or as soon
thereafter as practicable. Other regular meetings of the Board of Directors may be held at such
places within or without the State of Delaware and at such times as the Board of Directors may from
time to time determine.
Section 3.5.
Special Meetings
. Special meetings of the Board of Directors may be held
at any time or place within or without the State of Delaware whenever called by the Chairman of the
Board, the President or any two directors. Notice of a special meeting of the Board of Directors
shall be given by the person or persons calling the meeting at least two days before the special
meeting.
Section 3.6.
Telephonic Meetings Permitted
. Members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting thereof by means of
conference telephone or other communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
Section 3.7.
Quorum; Vote Required for Action
. At all meetings of the Board of
Directors the directors entitled to cast a majority of the votes of the whole Board of Directors
shall constitute a quorum for the transaction of business. Except in cases in which the
certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the
votes entitled to be cast by the directors present at a meeting at which a quorum is present shall
be the act of the Board of Directors.
Section 3.8.
Organization
. Meetings of the Board of Directors shall be presided over
by the Chairman of the Board, if any, or in his or her absence by the Vice Chairman of the Board,
if any, or in his or her absence by the President, or in their absence by a chairperson chosen at
the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the
chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 3.9.
Action by Unanimous Consent of Directors
. Unless otherwise restricted by
the certificate of incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting
if all members of the Board of Directors or such committee, as the case may be, consent thereto in
writing or by electronic transmission
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and the writing or writings or electronic transmissions are filed with the minutes of
proceedings of the board or committee in accordance with applicable law.
ARTICLE IV
Committees
Section 4.1.
Committees
. The Board of Directors may designate one or more committees,
each committee to consist of one or more of the directors of the corporation. The Board of
Directors may designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of the committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he, she or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member. Any such committee, to the extent permitted by law and to the
extent provided in the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all papers which may
require it.
Section 4.2.
Committee Rules
. Unless the Board of Directors otherwise provides, each
committee designated by the Board of Directors may make, alter and repeal rules for the conduct of
its business. In the absence of such rules each committee shall conduct its business in the same
manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.
Section 4.3.
Minutes
. Each committee shall keep minutes of its proceedings and shall
report thereon to the Board of Directors at or before the next meeting of the Board of Directors.
ARTICLE V
Officers
Section 5.1.
Officers; Election; Qualifications; Term of Office; Resignation; Removal;
Vacancies
. The Board of Directors shall elect a Chairman of the Board, a President and Chief
Executive Officer, one or more Vice Presidents, a Secretary and a Chief Financial Officer, and it
may, if it so determines, choose a Vice Chairman of the Board from among its members. The Board of
Directors may also choose a Treasurer, an Assistant to the President, one or more Assistant
Secretaries, and such other officers as it shall from time to time deem necessary or desirable.
Each such officer shall hold office until the first meeting of the Board of Directors after the
annual meeting of stockholders next succeeding his or her election, and until his or her successor
is elected and qualified or until his or her earlier resignation or removal. Election or
appointment of an officer or agent shall not of itself create contract rights. Any officer may
resign at any time upon written notice to the corporation. The Board of Directors may remove any
officer with or without cause at any time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the corporation. Any number of offices may be
held by
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the same person. Any vacancy occurring in any office of the corporation by death,
resignation, and removal or otherwise may be filled for the unexpired portion of the term by the
Board of Directors at any regular or special meeting.
Section 5.2.
Appointing Attorneys and Agents; Voting Securities of Other Entities
.
Unless otherwise provided by resolution adopted by the Board of Directors, the Chairman of the
Board, the President or any Vice President may cast, and may from time to time appoint an attorney
or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation,
to cast, the votes which the corporation may be entitled to cast as the holder of stock or other
securities in any other corporation or other entity, any of whose stock or other securities may be
held by the corporation, at meetings of the holders of the stock or other securities of such other
corporation or other entity, or to consent in writing, in the name of the corporation as such
holder, to any action by such other corporation or other entity, and may instruct the person or
persons so appointed as to the manner of casting such votes or giving such consents, and may
execute or cause to be executed in the name and on behalf of the corporation and under its
corporate seal or otherwise, all such written proxies or other instruments as he or she may deem
necessary or proper. Any of the rights set forth in this Section 5.2 which may be delegated to an
attorney or agent may also be exercised directly by the Chairman of the Board, the President or the
Vice President.
ARTICLE VI
Stock
Section 6.1.
Certificates
. The shares of the corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution or resolutions that
some or all of any or all classes or series of stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such certificate is
surrendered to the corporation. Every holder of stock represented by certificates shall be
entitled to have a certificate signed by or in the name of the corporation by (i) the Chairman of
the Board of Directors, the Vice Chairman of the Board of Directors, if any, or the President or a
Vice President, and by (ii) the Treasurer, the Secretary, or an Assistant Secretary of the
corporation certifying the number of shares owned by such holder in the corporation. Any of or all
the signatures on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person were such officer, transfer
agent, or registrar at the date of issue.
Section 6.2.
Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates
. The corporation may issue a new certificate of stock in the place of any
certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the
corporation may require the owner of the lost, stolen or destroyed certificate, or such owners
legal representative, to give the corporation a bond sufficient to indemnify it against any claim
that may be made against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
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ARTICLE VII
Indemnification and Advancement of Expenses
Section 7.1.
Right to Indemnification
.
(a) The corporation shall have power to indemnify 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 (other than an action
by or in the right of the corporation) by reason of the fact that the person 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, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the persons conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the person
reasonably believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to believe that the
persons conduct was unlawful.
(b) The corporation shall have power to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor by reason of the fact
that the person 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, partnership, joint venture, trust or other enterprise against
expenses (including attorneys fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person acted in
good faith and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of the corporation has
been successful on the merits or otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b) of this Section 7.1, or in defense of any claim,
issue or matter therein, such person shall be
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indemnified against expenses (including attorneys fees) actually and reasonably
incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Section 7.1 (unless
ordered by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the present or former director, officer,
employee or agent is proper in the circumstances because the person has met the applicable
standard of conduct set forth in subsections (a) and (b) of this Section 7.1. Such
determination shall be made, with respect to a person who is a director or officer at the
time of such determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a committee of
such directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (4) by the stockholders.
Section 7.2.
Advancement of Expenses
. Expenses (including attorneys fees) incurred
by an officer or director in defending any civil, criminal, administrative or investigative action,
suit or proceeding may be paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such person is not entitled
to be indemnified by the corporation as authorized in this Section. Such expenses (including
attorneys fees) incurred by former directors and officers or other employees and agents may be so
paid upon such terms and conditions, if any, as the corporation deems appropriate.
Section 7.3.
Non-Exclusivity of Rights
. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such persons official capacity and as to action in another capacity while holding
such office.
Section 7.4.
Insurance
. The corporation shall have 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 another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person in any such
capacity, or arising out of such persons status as such, whether or not the corporation would have
the power to indemnify such person against such liability under this Article VII.
Section 7.5.
Definitions
.
(a) For purposes of this Article VII, references to the corporation
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shall include, in addition to the resulting 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 this Article VII with respect to the resulting or surviving
corporation as such person would have with respect to such constituent corporation if its
separate existence had continued.
(b) For purposes of this Article VII, references to other enterprises shall include
employee benefit plans; references to fines shall include any excise taxes assessed on a
person with respect to any 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 such person reasonably
believed to be in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner not opposed to the best interests of the
corporation as referred to in this Article VII.
Section 7.6.
Continuation of Indemnification and Advancement
. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE VIII
Miscellaneous
Section 8.1.
Fiscal Year
. The fiscal year of the corporation shall be determined by
resolution of the Board of Directors.
Section 8.2.
Seal
. The corporate seal may have the name of the corporation inscribed
thereon and shall be in such form as may be approved from time to time by the Board of Directors.
Section 8.3.
Manner of Notice
. Without limiting the manner by which notice otherwise
may be given effectively to stockholders, and except as prohibited by applicable law, any notice to
stockholders given by the corporation under any provision of applicable law, the certificate of
incorporation, or these by-laws shall be effective if given by a single written notice to
stockholders who share an address if consented to by
11
the stockholders at that address to whom such notice is given. Any such consent shall be
revocable by the stockholder by written notice to the corporation. Any stockholder who fails to
object in writing to the corporation, within 60 days of having been given written notice by the
corporation of its intention to send the single notice permitted under this Section 8.3, shall be
deemed to have consented to receiving such single written notice. Notice to directors may be given
by telecopier, telephone or other means of electronic transmission.
Section 8.4.
Waiver of Notice of Meetings of Stockholders, Directors and Committees
.
Any waiver of notice, given by the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to be transacted at
nor the purpose of any regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in a waiver of notice.
Section 8.5.
Form of Records
. Any records maintained by the corporation in the
regular course of its business, including its stock ledger, books of account, and minute books, may
be kept on, or by means of, or be in the form of, any information storage device or method,
provided that the records so kept can be converted into clearly legible paper form within a
reasonable time.
Section 8.6.
Amendment of By-Laws
. These by-laws may be altered, amended or repealed,
and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws
and may alter and repeal any by-laws whether adopted by them or otherwise.
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First Adopted: June __, 2008
Sections Amended:
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