exhibit 3.1
AMENDED AND RESTATED BYLAWS
OF
LUMINEX CORPORATION
AMENDED AND RESTATED BYLAWS
OF
LUMINEX CORPORATION
ARTICLE I.
CORPORATE OFFICES
Section 1.1
Registered Office
. The address of the registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New
Castle 19801. The name of its registered agent at such address is the Corporation Trust Company.
Section 1.2
Other Offices
. The Board of Directors may at any time establish other
offices at any place or places where the Corporation is qualified to do business.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 2.1
Place of Meetings
. Meetings of stockholders shall be at any place, within
or outside the State of Delaware, designated by the Board of Directors. In the absence of any such
designation, stockholders’ meetings shall be held at the registered office of the Corporation.
Section 2.2
Annual Meeting
.
(a) The annual meeting of stockholders shall be held each year on a date and at a time
designated by the Board of Directors. At the meeting, directors shall be elected and any other
proper business may be transacted.
(b) Nominations of persons for election to the Board of Directors of the Corporation and the
proposal of proper business to be transacted by the stockholders may be made at an annual meeting
of stockholders (i) pursuant to the Corporation’s notice with respect to such meeting, (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 of the notice provided for in this Section 2.2, who is
entitled to vote at the meeting and who has complied with the notice procedures set forth in
paragraph (c) of this Section 2.2 (with respect to nominations of persons for election to the Board
of Directors) or paragraph (d) of this Section 2.2 (with respect to other proper business to be
conducted at the meeting).
(c) For nominations of persons for election as directors of the Corporation to be properly
brought before an annual meeting by a stockholder pursuant to clause (iii) of paragraph (b) of this
Section 2.2, the stockholder must have given timely notice thereof in writing to the secretary of
the Corporation. To be timely, a stockholder’s notice shall be delivered
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to the secretary at the principal executive offices of the Corporation not less than 30 days
nor more than 90 days prior to the first anniversary of the preceding year’s annual meeting of
stockholders; provided, however, that in the event that the date of the annual meeting is more than
30 days prior to or more than 60 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the 90th day prior to such annual meeting and not
later than the close of business on the later of the 20th day prior to such annual meeting or the
10th day following the day on which public announcement of the date of such meeting is first made.
Such stockholder’s notice shall set forth (i) as to each person whom the stockholder proposes to
nominate for election or re-election as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) (including such person’s written consent to being named in the proxy
statement as a nominee and to serving as a director if elected), along with a completed written
questionnaire with respect to each such person with respect to the background and qualification of
such person and any other person or entity that such person may represent (which questionnaire
shall be provided by the secretary of the Corporation) and a written representation and agreement
(in the form provided by the secretary of the Corporation) that each such person (A) has no
undisclosed commitment, agreement or understanding with any person or entity as to how such person
will act or vote on any issue or question as a director, (B) is not a party to any undisclosed
commitment, agreement or understanding with any person or entity other than the Corporation with
respect to compensation, reimbursement or indemnification in connection with service or action as a
director, (C) will comply with any director stock ownership and trading guidelines of the
Corporation and (D) in such person’s individual capacity and on behalf of any person or entity for
whom such person may be a representative, has complied and will comply with all applicable
corporate governance, conflicts, confidentiality and other policies of the Corporation; and (ii) as
to the stockholder giving the notice and any Stockholder Associated Person covered by clause (B)
below:
(A) The name and address of such stockholder as they appear on the Corporation’s books, and of
such Stockholder Associated
Person(s);
(B) The class and number of shares of capital stock of the Corporation that are owned
beneficially and of record by such stockholder and such Stockholder Associated Person and a
description in reasonable detail of any hedging, derivative, swap, profit interests, option or
other transactions or series of transactions engaged in, directly or indirectly, by such
stockholder and such Stockholder Associated Person, or any agreement, arrangement or understanding
(including any short position, or any borrowing or lending of shares) to which such stockholder or
such Stockholder Associated Person is a party, in each case, the effect or intent of which is to
mitigate loss to, manage the risk or benefit of share price changes for, or increase or decrease
the voting power of, such stockholder or Stockholder Associated Person with respect to shares of
capital stock of the Corporation, or otherwise to reduce the economic risk or benefit of ownership
of shares of capital stock of the Corporation to such stockholder or Stockholder Associated Person
(including where the value of any agreement, arrangement or understanding to which such stockholder
or such Stockholder Associated Person is a party is determined by reference to the price or value
of shares of the Corporation), and the agreement of the stockholder and any Stockholder Associated
Person to notify the Corporation in writing within five business days after the record date for the
meeting of any changes to such
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information provided pursuant to this Section 2.2(c)(ii)(B) in effect as of the record date
for the meeting;
(C) All contracts, arrangements, understandings and relationships with respect to the
stockholder’s or any Stockholder Associated Person’s investment in the Corporation, including with
other stockholders, potential investors in the Corporation, transaction counterparties, directors
or proposed director nominees and potential transaction advisers such as financial advisers, legal
counsel and proxy solicitation firms, and the agreement of the stockholder and any Stockholder
Associated Person to notify the Corporation in writing within five business days after the record
date for the meeting of any changes to such information provided pursuant to this Section
2.2(c)(ii)(C) in effect as of the record date for the meeting;
(D) Any material agreement such stockholder and such Stockholder Associated Person may have
with any other person or entity in connection with the nomination, and the agreement of the
stockholder and any Stockholder Associated Person to notify the Corporation in writing within five
business days after the record date for the meeting of any changes to such information provided
pursuant to this Section 2.2(c)(ii)(D) in effect as of the record date for the meeting; and
(E) A representation as to whether such stockholder or such Stockholder Associated Person
intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of
the Corporation’s outstanding shares required to approve the nomination and/or otherwise to solicit
proxies from stockholders in support of the nomination, and as to whether the stockholder or
Stockholder Associated Person intends to appear in person or by proxy at the meeting to propose
such nomination.
The Corporation may require any proposed nominee to furnish such additional information as it
may reasonably require to determine the eligibility of such proposed nominee to serve as an
independent director of the Corporation or that could be material to a reasonable stockholder’s
understanding of the independence, or lack thereof, of such nominee. The chairman of the meeting
shall, if the facts warrant, determine that a nomination was not made in accordance with the
procedures prescribed by these bylaws, and if the chairman should so determine, the chairman shall
so declare to the meeting and the defective nomination shall be disregarded. The requirements of
this Section 2.2(c) are intended to provide the Corporation with notice of a stockholder’s
intention to nominate a person for election as director at a stockholders’ meeting and in no event
shall be construed as imposing upon any stockholder the requirement to seek approval from the
Corporation as a condition precedent to making such a nomination.
(d) For other proper business to be properly brought before an annual meeting by a stockholder
pursuant to clause (iii) of paragraph (b) of this Section 2.2, the stockholder must have given
timely notice thereof in writing to the secretary of the Corporation and such business must be a
proper matter for stockholder action under the Delaware General Corporation Law. To be timely, a
stockholder’s notice shall be delivered to the secretary at the principal executive offices of the
Corporation not less than 30 days nor more than 90 days prior to the first anniversary of the
preceding year’s annual meeting of stockholders; provided, however, that in the event that the date
of the annual meeting is more than 30 days prior to or more than 60 days
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after such anniversary date, notice by the stockholder to be timely must be so delivered not
earlier than the 90th day prior to such annual meeting and not later than the close of business on
the later of the 20th day prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made. Such stockholder’s notice shall set
forth (i) as to any business that the stockholder proposes to bring before the meeting, a brief
description of such business, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and any Stockholder Associated Person
covered by clause (B) below; and (ii) as to the stockholder giving the notice and any Stockholder
Associated Person covered by clause (B) below:
(A) The name and address of such stockholder as they appear on the Corporation’s books, and of
such Stockholder Associated
Person(s);
(B) The class and number of shares of capital stock of the Corporation that are owned
beneficially and of record by such stockholder and such Stockholder Associated Person and a
description in reasonable detail of any hedging, derivative, swap or other transactions or series
of transactions engaged in, directly or indirectly, by such stockholder and such Stockholder
Associated Person, or any agreement, arrangement or understanding (including any short position, or
any borrowing or lending of shares) to which such stockholder or such Stockholder Associated Person
is a party, in each case, the effect or intent of which is to mitigate loss to, manage the risk or
benefit of share price changes for, or increase or decrease the voting power of, such stockholder
or Stockholder Associated Person with respect to shares of capital stock of the Corporation, or
otherwise to reduce the economic risk or benefit of ownership of shares of capital stock of the
Corporation to such stockholder or Stockholder Associated Person (including where the value of any
agreement, arrangement or understanding to which such stockholder or such Stockholder Associated
Person is a party is determined by reference to the price or value of shares of the Corporation),
and the agreement of the stockholder and any Stockholder Associated Person to notify the
Corporation in writing within five business days after the record date for the annual meeting of
any changes to such information provided pursuant to this Section 2.2(d)(ii)(B) in effect as of the
record date for the meeting;
(C) All contracts, arrangements, understandings and relationships with respect to the
stockholder’s or any Stockholder Associated Person’s investment in the Corporation, including with
other stockholders, potential investors in the Corporation, directors or proposed director nominees
and potential transaction advisers such as financial advisers, legal counsel and proxy solicitation
firms, and the agreement of the stockholder and any Stockholder Associated Person to notify the
Corporation in writing within five business days after the record date for the annual meeting of
any changes to such information provided pursuant to this Section 2.2(d)(ii)(C) in effect as of the
record date for the meeting;
(D) Any material agreement such stockholder and such Stockholder Associated Person may have
with any other person or entity in connection with the proposed business, and the agreement of the
stockholder and any Stockholder Associated Person to notify the Corporation in writing within five
business days after the record date for the annual meeting of any changes to such information
provided pursuant to this Section 2.2(d)(ii)(C) in effect as of the record date for the meeting;
and
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(E) A representation as to whether such stockholder or such Stockholder Associated Person
intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of
the Corporation’s outstanding shares required to approve the proposal and/or otherwise to solicit
proxies from stockholders in support of the proposal, and as to whether the stockholder or
Stockholder Associated Person intends to appear in person or by proxy at the meeting to propose
such proper business.
The requirements of this Section 2.2(d) are intended to provide the Corporation with notice of
a stockholder’s intention to bring business before a stockholders’ meeting and in no event shall be
construed as imposing upon any stockholder the requirement to seek approval from the Corporation as
a condition precedent to bringing any such business before a stockholders’ meeting.
(e) Only such business shall be conducted at an annual meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in this Section 2.2.
The chairman of the meeting shall determine whether a nomination or any business proposed to be
transacted by the stockholders has been properly brought before the meeting and, if any proposed
nomination or business has not been properly brought before the meeting, the chairman shall declare
that such proposed business or nomination shall not be presented for stockholder action at the
meeting. Notwithstanding the foregoing provisions of this Section 2.2, unless otherwise required
by law, if the stockholder does not provide the supplemental information required regarding both
the stockholder and any Stockholder Associated Persons under Sections 2.2(c)(ii)(B), 2.2(c)(ii)(C),
2.2(c)(ii)(D), 2.2(d)(ii)(B), 2.2(d)(ii)(C) and 2.2(d)(ii)(D) to the Corporation within five
business days following the record date for an annual meeting of stockholders or if the stockholder
(or a qualified representative of the stockholder) does not appear at the annual meeting to present
the nomination or proper business described in the stockholder’s notice delivered pursuant to
Section 2.2(c) or 2.2(d), such nomination shall not be considered or such business shall not be
transacted, notwithstanding that proxies in respect of such vote may have been received by the
Corporation. For purposes of this Section 2.2, to be considered a qualified representative of the
stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or
authorized by a writing executed by such stockholder (or a reliable reproduction or electronic
transmission of the writing) delivered to the Corporation prior or together with the information
required under this Section 2.2 in connection with to the proposing of the nomination or proper
business at the meeting by the stockholder stating that the person is authorized to act for the
stockholder as proxy at the meeting of stockholders.
(f) For purposes of this Section 2.2, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or a comparable national news
service or the filing of information with the Securities and Exchange Commission via the EDGAR
filing system.
(g) Nothing in this Section 2.2 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 (or any
successor rule) promulgated under the Exchange Act. Any references in these Bylaws to the Exchange
Act or the rules promulgated thereunder are not intended to and shall not
6
limit the requirements applicable to nominations or other proposed business to be considered
pursuant to these Bylaws.
(h) For purposes hereof, “Stockholder Associated Person” of any stockholder means (i) any
person controlling, directly or indirectly, or acting in concert with, such stockholder, (ii) any
beneficial owner of shares of stock of the Corporation owned of record or beneficially by such
stockholder and (iii) any person controlling, controlled by or under common control with such
Stockholder Associated Person.
Section 2.3
Special Meeting
.
(a) A special meeting of the stockholders may be called at any time by the Board of Directors,
the chairman of the board or the president of the Corporation. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before the meeting
pursuant to the Corporation’s notice of meeting pursuant to Section 2.4.
(b) Nominations of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which the Corporation’s notice of meeting pursuant to Section 2.4
specifies that directors are to be elected pursuant to such 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 of notice provided for in Section 2.4, who shall be
entitled to vote at the meeting and who complies with the notice procedures and information
requirements set forth in Section 2.2(c) with respect to nominations for election of directors,
except that such notice of nominations of persons for election as directors of the Corporation
shall be considered timely if it is delivered to the secretary at the principal executive offices
of the Corporation not earlier than the 90th day prior to such special meeting and not later than
the close of business on the later of the 30th day prior to such special meeting or the 10th day
following the day on which public announcement of the date of such meeting is first made.
(c) The chairman of the special meeting shall determine whether a nomination by the
stockholders has been properly brought before the meeting and, if any proposed nomination has not
been properly brought before the meeting, the chairman shall declare that such proposed nomination
shall not be presented for stockholder action at the meeting. Unless otherwise required by law, if
the stockholder does not provide the supplemental information required regarding both the
stockholder and any Stockholder Associated Persons under Sections 2.2(c)(ii)(B), 2.2(c)(ii)(C) and
2.2(c)(ii)(D) to the Corporation within five business days following the record date for a special
meeting of stockholders (unless such record date is within five business days following the day on
which public announcement of the date of such special meeting is first made, in which case such
supplemental information must be provided no later than the 10th day following the day on which
public announcement of the date of such meeting is first made) or if the stockholder (or a
qualified representative of the stockholder) does not appear at the special meeting to present the
nomination described in the stockholder’s notice delivered pursuant to Section 2.3(b), such
nomination shall not be considered, notwithstanding that proxies in respect of such vote may have
been received by the Corporation. For purposes of this Section 2.3, to be considered a qualified
representative of the stockholder, a person must be a duly authorized officer, manager or partner
of such stockholder or authorized by a writing executed by such stockholder (or a reliable
reproduction or electronic transmission of the
7
writing) delivered to the Corporation prior to or in connection with the information required
under this Section 2.3 in connection with the proposing of the nomination at the meeting by the
stockholder stating that the person is authorized to act for the stockholder as proxy at the
meeting of stockholders.
Section 2.4
Notice of Stockholder’s Meetings; Affidavit of Notice
.
(a) All notices of meetings of stockholders shall be in writing and shall be sent or otherwise
given in accordance with this Section 2.4 of these Bylaws not less than 10 nor more than 60 days
before the date of the meeting to each stockholder entitled to vote at such meeting (or such longer
or shorter time as is required by Section 2.5 of these Bylaws, if applicable). The notice shall
specify the place, date, and hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called.
(b) Written notice of any meeting of stockholders, if mailed, is given when deposited in the
United States mail, postage prepaid, directed to the stockholder at his or her address as it
appears on the records of the Corporation. An affidavit of the secretary or an assistant secretary
or of the transfer agent of the Corporation that the notice has been given shall, in the absence of
fraud, be prima facie evidence of the facts stated therein.
Section 2.5
Quorum
. The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either (a) the chairman of the meeting or (b)
a majority of the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present or represented. At such adjourned meeting at which a
quorum is present or represented, any business may be transacted that might have been transacted at
the meeting as originally noticed. If the adjournment is for more than 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.
Section 2.6
Conduct of Business
. The chairman of any meeting of stockholders shall
determine the order of business and the procedure at the meeting, including the manner of voting
and the conduct of business.
Section 2.7
Voting
. The stockholders entitled to vote at any meeting of stockholders
shall be determined in accordance with the provisions of Section 2.9 of these Bylaws, subject to
the provisions of Sections 217 and 218 of the Delaware General Corporation Law (relating to voting
rights of fiduciaries, pledgors and joint owners of stock and to voting trusts and other voting
agreements). Except as may be otherwise provided in the Certificate of Incorporation, each
stockholder shall be entitled to one vote for each share of capital stock held by such stockholder.
8
Section 2.8
Waiver of Notice
. Whenever notice is required to be under any provision
of the Delaware General Corporation Law or of the Certificate of Incorporation or these Bylaws, a
written waiver thereof, signed 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 need be specified in any
written waiver of notice unless so required by the Certificate of Incorporation or these Bylaws.
Section 2.9
Record Date for Stockholder Notice
. In order that Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other action. If the Board of Directors does not
so fix a record date:
(a) 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.
(b) 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 2.10
Proxies
. Each stockholder entitled to vote at a meeting of stockholders
may authorize another person or persons to act for such stockholder by a written proxy, signed by
the stockholder and filed with the secretary of the Corporation, 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 deemed signed if the stockholder’s name is placed on the proxy (whether by manual
signature, typewriting, telegraphic transmission or otherwise) by the stockholder or the
stockholder’s attorney-in-fact. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Section 212(e) of the Delaware General
Corporation Law.
Section 2.11
Stockholder Action by Unanimous Written Consent without a Meeting
. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the stockholders of the Corporation may be taken without a
meeting if holders of all the shares of capital stock entitled to vote thereon consent thereto in
writing. Written consents representing actions taken by the stockholders of the Corporation may be
executed by telex, telecopy or other facsimile transmission, and such facsimile shall be valid and
binding to the same extent as if it were an original.
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ARTICLE III.
DIRECTORS
Section 3.1
Powers
. Subject to the provisions of the Delaware General Corporation Law
and any limitations in the Certificate of Incorporation or these Bylaws relating to action required
to be approved by the stockholders, the business and affairs of the Corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the Board of Directors.
Section 3.2
Number of Directors
. Subject to the limitations contained in Certificate
of Incorporation, the number of directors of the Corporation shall be fixed from time to time by
resolution adopted by a vote of a majority of the entire Board of Directors, provided that the
number so fixed shall not be less than five nor more than 15.
Section 3.3
Election, Qualification and Term of Office of Directors
. Subject to the
provisions of Article V of the Certificate of Incorporation concerning a classified board of
directors and except as provided in Section 3.4 of these Bylaws, the successors of the class of
directors whose term expires at that annual meeting of stockholders shall be elected to hold office
until the annual meeting of stockholders held in the third year following the year of their
election. Directors need not be stockholders unless so required by the Certificate of
Incorporation, wherein other qualifications for directors may be prescribed. Each director,
including a director elected to fill a vacancy, shall hold office until his or her successor is
elected and qualified or until his or her earlier resignation or removal. Elections of directors
need not be by written ballot.
Section 3.4
Resignation and Vacancies
. Any director may resign at any time upon
written notice to the attention of the secretary of the Corporation. When one or more directors so
resign and the resignation is effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have the sole power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations shall become
effective. Subject to the rights of holders of capital stock of the Corporation pursuant to any
valid and binding agreement, any vacancy occurring on the Board of Directors created by reason of
newly created directorships resulting from the issuance of any class or series of capital stock of
the Corporation or newly created directorships resulting from any increase in the number of
directors and any vacancy occurring on the Board of Directors resulting from death, resignation,
removal or other cause shall be filled solely by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board of Directors, or by
a sole remaining director. Any such director elected to fill a vacancy on the Board of Directors
shall hold such office for the remainder of the full term of the class of directors in which the
new directorship was created or the vacancy occurred and until such director’s successor shall have
been elected and qualified.
Unless otherwise provided in the Certificate of Incorporation or these Bylaws, whenever any
holders of a class or series of capital stock of the Corporation have the right to elect one or
more directors pursuant to the Certificate of Incorporation or the provisions of any valid and
binding agreement, vacancies in directorships to which such right relates may be filled by a
10
majority of the directors elected by the holders of such class or classes or series then in
office, or by a sole remaining director so elected.
If at any time, by reason of death or resignation or other cause, the Corporation should have
no directors in office, then any officer or any stockholder or an executor, administrator, trustee
or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person
or estate of a stockholder, may call a special meeting of stockholders in accordance with the
provisions of the Certificate of Incorporation or these Bylaws, or may apply to the Court of
Chancery for a decree summarily ordering an election as provided in Section 211 of the Delaware
General Corporation Law.
Section 3.5
Place of Meetings; Meetings by Telephone
.
(a) The Board of Directors of the Corporation may hold meetings, both regular and special,
either within or outside the State of Delaware.
(b) Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members
of the Board of Directors, or any committee designated by the Board of Directors, may participate
in a meeting of the Board of Directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in the meeting can
hear each other, and such participation in a meeting shall constitute presence in person at the
meeting.
Section 3.6
Regular Meetings
. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be determined by the Board
of Directors.
Section 3.7
Special Meetings; Notice
.
(a) Special meetings of the Board of Directors for any purpose or purposes may be called at
any time by the chairman of the board, the president or any two directors.
(b) Notice of the time and place of special meetings shall be delivered to each directors (i)
personally, (ii) by telephone, (iii) by facsimile, (iv) by electronic mail, or (v) sent by
first-class mail, addressed to each director at that director’s address as it is shown on the
records of the Corporation. If the notice is mailed, it shall be deposited in the United States
mail at least four days before the time of the holding of the meeting. If the notice is delivered
personally, by telephone, by facsimile or by electronic mail, it shall be delivered at least 24
hours before the time of the holding of the meeting. Any oral notice given personally or by
telephone may be communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate it to the
director. The notice need not specify the purpose or the place of the meeting, if the meeting is to
be held at the principal executive office of the Corporation.
Section 3.8
Quorum
. At all meetings of the Board of Directors, a majority of the
authorized number of directors shall constitute a quorum for the transaction of business and the
act of a majority of the directors present at any meeting at which there is a quorum shall be the
11
act of the Board of Directors, except as may be otherwise specifically provided by statute or
by the Certificate of Incorporation. If a quorum is not present at any meeting of the Board of
Directors, then the directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum is present.
A meeting at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for that meeting.
Section 3.9
Waiver of Notice
. Whenever notice is required to be given under any
provision of the Delaware General Corporation Law or of the Certificate of Incorporation or these
Bylaws, a written waiver thereof, signed 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 directors, or members of a
committee of directors, need be specified in any written waiver of notice unless so required by the
Certificate of Incorporation or these Bylaws.
Section 3.10
Board Action by Written Consent without a Meeting
. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to
be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken
without a meeting if all members of the Board of Directors or committee, as the case may be,
consent thereto in writing and the writing or writings are filed with the minutes of proceedings of
the Board of Directors or committee. Written consents representing actions taken by the board or
committee may be executed by telex, telecopy or other facsimile transmission, and such facsimile
shall be valid and binding to the same extent as if it were an original.
Section 3.11
Fees and Compensation of Directors
. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, the Board of Directors shall have the authority to
fix the compensation of directors and no such compensation shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.
Section 3.12
Approval of Loans to Officers
. The Corporation may lend money to, or
guarantee any obligation of, or otherwise assist any officer or other employee of the Corporation
or of its subsidiary, including any officer or employee who is a director of the Corporation or its
subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may
reasonably be expected to benefit the Corporation. The loan, guaranty or other assistance may be
with or without interest and may be unsecured, or secured in such manner as the Board of Directors
shall approve, including, without limitation, a pledge of shares of stock of the Corporation.
Nothing contained in this Section 3.12 shall be deemed to deny, limit or restrict the powers of
guaranty or warranty of the Corporation at common law or under any statute.
Section 3.13
Removal of Directors
. Subject to provisions of the Delaware General
Corporation Law and the rights of the holders of any shares of capital stock of the Corporation,
any director may be removed from office only for cause and only by the affirmative vote of the
12
holders of a majority of the combined voting power of the then outstanding shares of voting
capital stock of the Corporation, voting together as a single class. For purposes of this Section
3.13, “cause” shall mean the willful and continuous failure of a director substantially to perform
such director’s duties to the Corporation (other than any such failure resulting from incapacity
due to physical or mental illness) or the willful engaging by a director in gross misconduct
materially and demonstrably injurious to the Corporation.
Section 3.14
Chairman of the Board of Directors
. The Corporation may also have, at
the discretion of the Board of Directors, a chairman of the Board of Directors who shall not be
considered an officer of the Corporation.
ARTICLE IV.
COMMITTEES
Section 4.1
Committees of Directors
. The Board of Directors may, by resolution passed
by a majority of the whole Board of Directors, designate one or more committees, with 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 a committee, the member or members thereof present at any meeting and not disqualified
from voting, whether or not such member or members 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. Any such committee, to the extent provided in the resolution of the Board of
Directors or in the Bylaws of the Corporation, 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 that may
require it; but no such committee shall have the power or authority to (a) amend the Certificate of
Incorporation (except that committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of Directors as provided in
Section 151(a) of the Delaware General Corporation Law, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any other class or
classes of stock of the Corporation or fix the number of shares of any series of stock or authorize
the increase or decrease of the shares of any series), (b) adopt an agreement of merger or
consolidation under Sections 251, 252, 254, 255, 256, 257, 258, 263 or 264 of the Delaware General
Corporation Law, (c) recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation’s property and assets, (d) recommend to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or (e) amend the Bylaws of the
Corporation; and, unless the Board resolution establishing the committee, the Bylaws or the
Certificate of Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt a certificate of
ownership and merger pursuant to Section 253 of the Delaware General Corporation Law.
Section 4.2
Committee Minutes
. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
13
Section 4.3
Meetings and Action of Committees
. Meetings and actions of committees
shall be governed by, and held and taken in accordance with, the provisions of Section 3.5 (place
of meetings and meetings by telephone), Section 3.6 (regular meetings), Section 3.7 (special
meetings and notice), Section 3.8 (quorum), Section 3.9 (waiver of notice), and Section 3.10
(action without a meeting) of these Bylaws, with such changes in the context of such provisions as
are necessary to substitute the committee and its members for the Board of Directors and its
members; provided, however, that the time of regular meetings of committees may be determined
either by resolution of the Board of Directors or by resolution of the committee, that special
meetings of committees may also be called by resolution of the Board of Directors and that notice
of special meetings of committees shall also be given to all alternate members, who shall have the
right to attend all meetings of the committee. The Board of Directors may adopt rules for the
governance of any committee not inconsistent with the provisions of these Bylaws.
ARTICLE V.
OFFICERS
Section 5.1
Officers
. The officers of the Corporation shall be a chief officer, a
president, a secretary and a chief financial officer. The Corporation may also have, at the
discretion of the Board of Directors, one or more vice presidents, a treasurer, one or more
assistant secretaries, one or more assistant treasurers and any such other officers as may be
appointed in accordance with the provisions of Section 5.3 of these Bylaws. Any number of offices
may be held by the same person.
Section 5.2
Appointment of Officers
. The officers of the Corporation, except such
officers as may be appointed in accordance with the provisions of Sections 5.3 or 5.5 of these
Bylaws, shall be elected by the Board of Directors, subject to the rights, if any, of an officer
under any contract of employment.
Section 5.3
Subordinate Officers
. The Board of Directors may appoint, or empower the
chief executive officer or the president to appoint, such other officers and agents as the business
of the Corporation may require, each of whom shall hold office for such period, have such
authority, and perform such duties as are provided in these Bylaws or as the Board of Directors may
from time to time determine.
Section 5.4
Removal and Resignation of Officers
. Subject to the rights, any, of an
officer under any contract of employment, any officer may be removed, either with or without cause,
by an affirmative vote of the majority of the Board of Directors at any regular or special meeting
of the Board of Directors or, except in the case of an officer chosen by the Board of Directors, by
any officer upon whom such power of removal may be conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the attention of the secretary
of the Corporation. Any resignation shall take effect at the date of the receipt of that notice or
at any later time specified in that notice; and, unless otherwise specified in that notice, the
acceptance of the resignation shall not be necessary to make it effective. Any resignation is
without prejudice to the rights, if any, of the Corporation under any contract to which the officer
is a party.
14
Section 5.5
Vacancies in Offices
. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
Section 5.6
Chief Executive Officer
. Subject to such supervisory powers, if any, as
may be given by the Board of Directors to the chairman of the board, if any, the chief executive
officer of the Corporation shall, subject to the control of the Board of Directors, have general
supervision, direction and control of the business and the officers of the Corporation. He or she
shall preside at all meetings of the stockholders and, in the absence or nonexistence of a chairman
of the board, at all meetings of the Board of Directors and shall have the general powers and
duties of management usually vested in the office of chief executive officer of a corporation and
shall have such other powers and duties as may be prescribed by the Board of Directors or these
Bylaws.
Section 5.7
President
. Subject to such supervisory powers, if any, as may be given by
the Board of Directors to the chairman of the board (if any) or the chief executive officer, the
president shall have general supervision, direction and control of the business and other officers
of the Corporation. He or she shall have the general powers and duties of management usually vested
in the office of the chief operating officer of a corporation and such other powers and duties as
may be prescribed by the Board of Directors or these Bylaws.
Section 5.8
Vice Presidents
. In the absence or disability of the chief executive
officer and president, the vice presidents, if any, in order of their rank as fixed by the Board of
Directors or, if not ranked, a vice president designated by the Board of Directors, shall perform
all the duties of the president and when so acting shall have all the powers of, and be subject to
all the restrictions upon, the president. The vice presidents shall have such other powers and
perform such other duties as from time to time may be prescribed for them respectively by the Board
of Directors, these Bylaws, the chief executive officer, the president or the chairman of the
board.
Section 5.9
Secretary
. The secretary shall keep or cause to be kept, at executive
office of the Corporation or such other place as the Board of Directors may direct, a book of
minutes of all meetings and actions of directors, committees of directors, and stockholders. The
minutes shall show the time and place of each meeting, the names of those present at directors’
meetings or committee meetings, the number of shares present or represented at stockholders’
meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive office of the
Corporation or at the office of the Corporation’s transfer agent or registrar, as determined by
resolution of the Board of Directors, a share register, or a duplicate share register, showing the
names of all stockholders and their addresses, the number and classes of shares held by each, the
number and date of certificates evidencing such shares, and the number and date of cancellation of
every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the stockholders and
of the Board of Directors required to be given by law or by these Bylaws. He or she shall keep the
seal of the Corporation, if one be adopted, in safe custody and shall have such other
15
powers and perform such other duties as may be prescribed by the Board of Directors or by
these Bylaws.
Section 5.10
Chief Financial Officer
. The chief financial officer shall keep and
maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of
the properties and business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares. The
books of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other valuables in the name and to
the credit of the Corporation with such depositories as may be designated by the Board of
Directors. He or she shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall render to the president, the chief executive officer, or the directors, upon
request, an account of all his or her transactions as chief financial officer and of the financial
condition of the Corporation, and shall have other powers and perform such other duties as may be
prescribed by the Board of Directors or the Bylaws.
Section 5.11
Representation of Shares of Other Corporations
. The chairman of the
board, the chief executive officer, the president, any vice president, the chief financial officer,
the secretary or assistant secretary of this Corporation, or any other person authorized by the
Board of Directors or the chief executive officer or the president or a vice president, is
authorized to vote, represent, and exercise on behalf of this Corporation all rights incident to
any and all shares of any other corporation or corporations standing in the name of this
Corporation. The authority granted herein may be exercised either by such person directly or by any
other person authorized to do so by proxy or power of attorney duly executed by the person having
such authority.
Section 5.12
Authority and Duties of Officers
. In addition to the foregoing authority
and duties, all officers of the Corporation shall respectively have such authority and perform such
duties in the management of the business of the Corporation as may be designated from time to time
by the Board of Directors or the stockholders.
ARTICLE VI.
RECORDS AND REPORTS
Section 6.1
Maintenance and Inspection of Records
. The Corporation shall, either at
its principal executive offices or at such place or places as designated by the Board of Directors,
keep a record of its stockholders listing their names and addresses and the number and class of
shares held by each stockholder, a copy of these Bylaws as amended to date, accounting books, and
other records.
Any stockholder of record, in person or by attorney or other agent, shall, upon written demand
under oath stating the purpose thereof, have the right during the usual hours for business to
inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its
other books and records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person’s interest as a stockholder. In every instance where an
attorney or other agent is the person who seeks the right to inspection, the demand under oath
shall be accompanied by a power of attorney or such other writing that authorizes the attorney or
16
other agent to so act on behalf of the stockholder. The demand under oath shall be directed to
the Corporation at its registered office in Delaware or at its principal place of business.
Section 6.2
Inspection by Directors
. Any director shall have the right to examine the
Corporation’s stock ledger, a list of its stockholders, and its other books and records for a
purpose reasonably related to his or her position as a director. The Court of Chancery is hereby
vested with the exclusive jurisdiction to determine whether a director is entitled to the
inspection sought. The Court may summarily order the Corporation to permit the director to inspect
any and all books and records, the stock ledger, and the stock list and to make copies or extracts
therefrom. The Court may, in its discretion, prescribe any limitations or conditions with reference
to the inspection, or award such other and further relief as the Court may deem just and proper.
Section 6.3
Annual Statement to Stockholders
. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the Corporation.
ARTICLE VII.
GENERAL MATTERS
Section 7.1
Checks
. From time to time, the Board of Directors determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders for payment of money,
notes or other evidences of indebtedness that are issued in the name of or payable to the
Corporation, and only the persons so authorized shall sign or endorse those instruments.
Section 7.2
Execution of Corporate Contracts and Instruments
. The Board of Directors,
except as otherwise provided in these Bylaws, may authorize any officer or officers, or agent or
agents, to enter into any contract or execute any instrument in the name of and on behalf of the
Corporation; such authority may be general or confined to specific instances. Unless so 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.
Section 7.3
Stock Certificates; Partly Paid Shares
. The shares of Corporation shall
be represented by certificates, provided that the Board of Directors of the Corporation may provide
by resolution or resolutions that some or all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock represented by certificates and upon
request every holder of uncertificated shares shall be entitled to have a certificate signed by, or
in the name of the Corporation by the chairman or vice chairman of the Board of Directors, or the
chief executive officer or the president or vice president, and by the chief financial officer or
an assistant treasurer, or the secretary or an assistant secretary of the Corporation representing
the number of shares registered in certificate form. Any or all of 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 has ceased to be such officer,
transfer agent or
17
registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if he or she were such officer, transfer agent or registrar at the date of issue. The
Corporation may issue the whole or any part of its shares as partly paid and subject to call for
the remainder of the consideration to be paid therefor. Upon the face or back of each stock
certificate issued to represent any such partly paid shares, upon the books and records of the
Corporation in the case of uncertificated partly paid shares, the total amount of the consideration
to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any
dividend on fully paid shares, the Corporation shall declare a dividend upon partly paid shares of
the same class, but only upon the basis of the percentage of the consideration actually paid
thereon.
Section 7.4
Special Designation on Certificates
. If the Corporation is authorized to
issue more than one class of stock or more than one series of any class, then the powers, the
designations, the preferences, and the 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 shall be set forth in full or summarized on the face or back of the
certificate that the Corporation shall issue to represent such class or series of stock; provided,
however, that, except as otherwise provided in Section 202 of the Delaware General Corporation Law,
in lieu of the foregoing requirements there may be set forth on the face or back of the certificate
that the Corporation shall issue to represent such class or series of stock a statement that the
Corporation will furnish without charge to each stockholder who so requests the powers, the
designations, the preferences, and the 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.
Section 7.5
Lost Certificates
. Except as provided in this Section 7.5, no new
certificates for shares shall be issued to replace a previously issued certificate unless the
latter is surrendered to the Corporation and canceled at the same time. The Corporation may issue a
new certificate of stock or uncertificated shares in the place of any certificate previously 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 the owner’s 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 or uncertificated shares.
Section 7.6
Construction; Definitions
. Unless the context requires otherwise, the
general provisions, rules of construction, and definitions in the Delaware General Corporation Law
shall govern the construction of these Bylaws. Without limiting the generality of this provision,
the singular number includes the plural, the plural number includes the singular, and the term
“person” includes both a corporation and a natural person.
Section 7.7
Dividends
. The directors of the Corporation, subject to any restrictions
contained in (a) the Delaware General Corporation Law or (b) the Certificate of Incorporation, may
declare and pay dividends upon the shares of its capital stock. Dividends may be paid in cash, in
property, or in shares of the Corporation’s capital stock.
The directors of the Corporation may set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper purpose and may abolish any such
18
reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or
maintaining any property of the Corporation, and meeting contingencies.
Section 7.8
Fiscal Year
. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors and may be changed by the Board of Directors.
Section 7.9
Seal
. The Corporation may adopt a corporate seal, which may be altered at
pleasure, and may use the same by causing it or a facsimile thereof, to be impressed or affixed or
in any other manner reproduced.
Section 7.10
Transfer of Stock
. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate,
and record the transaction in its books.
Section 7.11
Stock Transfer Agreements
. 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 Delaware General
Corporation Law.
Section 7.12
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, shall be entitled to hold liable for calls and assessments the person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of another person, whether or not
it shall have express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VIII.
AMENDMENTS
Section 8.1
By the Board of Directors
. The Bylaws may be altered, amended or repealed
or now bylaws may be adopted by the affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a quorum is present.
Section 8.2
By the Stockholders
. These Bylaws may be altered, amended or repealed or
new bylaws may be adopted by the affirmative vote of the holders of a majority of the shares of the
capital stock of the Corporation issued and outstanding and entitled to vote at any regular or
special meeting of stockholders, provided notice of such alteration amendment, repeal or adoption
of new bylaws shall have been stated in the notice of such regular or special meeting.
As amended on September 10, 2008.
19
exhibit 10.1
DRAFT
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT
(the “
Agreement
”) is made and entered into as of the
___ day of
, 2008, by and between LUMINEX CORPORATION, a Delaware corporation (the
“
Company
”), and the undersigned (“
Indemnitee
”).
RECITALS
WHEREAS,
it is essential to the Company that it attract and retain as directors and officers
the most capable persons available; and
WHEREAS,
both the Company and Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public companies in the current
environment; and
WHEREAS
, the Indemnitee is currently serving/is willing to serve as a director and/or officer
of the Company and is willing to continue serving in such capacity if Indemnitee is adequately
protected against the risks associated with such service; and
WHEREAS,
Section 145 of the General Corporation Law of the State of Delaware (the
“
DGCL
”), under which law the Company is organized, empowers a corporation to indemnify a
person serving as a director or officer of the Company and a person who serves at the request of
the company as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust, or other enterprise, and Section 145 of the DGCL and the certificate of
incorporation of the Company specify that the indemnification set forth in Section 145 and in the
certificate of incorporation, respectively, shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any law (common or statutory), agreement,
vote of stockholders or disinterested directors or otherwise; and
WHEREAS,
the Company and the Indemnitee have concluded that the indemnities available under
the Company’s certificate of incorporation, bylaws and any insurance now or hereafter in effect
need to be supplemented to more fully protect the Indemnitee against the risks associated with the
Indemnitee’s service to the Company; and
WHEREAS,
in recognition of Indemnitee’s need for additional protection against personal
liability in order to enhance Indemnitee’s service to the Company in an effective manner, and in
order to induce Indemnitee to continue to provide services to the Company as a director and/or
officer thereof, the Company wishes to provide in this Agreement for the indemnification of
Indemnitee to the fullest extent permitted by the DGCL and as set forth in this Agreement.
NOW THEREFORE,
in consideration of the foregoing, the covenants contained herein and
Indemnitee’s continued service to the Company, the Company and Indemnitee, intending to be legally
bound, hereby agree as follows:
Section 1.
Definitions
. The following terms, as used herein, shall have the following
respective meanings:
“
Affiliate
” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting
1
securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
relative to the foregoing.
“
Change in Control
” shall be deemed to have taken place if: (i) any person or group of
persons (as such term is defined in Rule 13d-5(b)(1) promulgated under the Exchange Act) acquires
shares carrying more than fifty percent (50%) of the voting rights at general meetings of the
Company, (ii) the stockholders of the Company approve a merger or consolidation of the Company with
any other company, other than (x) a merger or consolidation which actually results in the voting
securities of the Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the surviving entity) more
than fifty percent (50%) of the combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or consolidation, or (y) a merger
or consolidation effected to implement a recapitalization of the Company (or similar transaction)
in which no person or group of persons acquires more than fifty percent (50%) of the combined
voting power of the Company’s then outstanding securities, (iii) the stockholders of the Company
approve a plan of complete liquidation of the Company or an arrangement for the sale or disposition
of the Company or all or substantially all of the Company’s overall assets or any transaction
having a similar effect; (iv) individuals who constitute the Incumbent Board cease for any reason
to constitute at least a majority of the Board;
provided
,
however
, that any
individual becoming a director subsequent to the date of this Agreement whose election, or
nomination for election by the Company’s stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this purpose, any such
individual who was designated by a Person who has entered into an agreement with the Company to
effect a transaction described in clause (i), (ii) or (iii) of this definition or whose initial
assumption of office occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Incumbent Board; or (v) there occurs any other
event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or a response to any similar item on any similar schedule or form promulgated under
the Exchange Act), whether or not the Company is then subject to such reporting requirement;
provided
, that no Change in Control shall be deemed to result from any corporate changes to
the Company’s certificate of incorporation or by-laws at the Company not resulting from one of the
events specified above or from any change in the relative rights and powers of one or more classes
of the Company’s capital stock whether effected by contract or otherwise, in each case to the
extent that they result from or are related to the settlement of any criminal or civil litigation
or do not result in the occurrence of any of the events specified in clauses (i) through (v) of
this definition.
“
Claim
” means (a) any threatened, pending or completed action, suit, proceeding or
arbitration or other alternative dispute resolution mechanism, or (b) any inquiry, hearing or
investigation, whether conducted by the Company or any other Person, that Indemnitee in good faith
believes might lead to the institution of any such action, suit, proceeding or arbitration or other
alternative dispute resolution mechanism, in each case whether civil, criminal, administrative or
other (whether or not the claims or allegations therein are groundless, false or fraudulent) and
includes, without limitation, those brought by or in the name of the Company or any director or
officer of the Company.
“
Company Agent
” means any director, officer, partner, employee, agent, trustee or
fiduciary of the Company, any Subsidiary or any Other Enterprise.
“
Covered Event
” means any event or occurrence on or after the date of this Agreement
related to the fact that Indemnitee is or was a Company Agent or related to anything done or not
done by Indemnitee in any such capacity, and includes, without limitation, any such event or
occurrence (a) arising from performance of the responsibilities, obligations or duties imposed by
ERISA or any similar
2
applicable provisions of state or common law; or (b) arising from any merger, consolidation or
other business combination involving the Company, any Subsidiary or any Other Enterprise, including
without limitation any sale or other transfer of all or substantially all of the business or assets
of the Company, any Subsidiary or any Other Enterprise;
provided
,
however
, that in
any such case, Indemnitee acted in good faith and in a manner which such Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, and in the case of a
criminal proceeding, in addition the Indemnitee [(x)] had no reasonable cause to believe that such
Indemnitee’s conduct was unlawful and (y) has not admitted that Indemnitee’s conduct was unlawful.
“
D&O Insurance
” means the directors’ and officers’ liability insurance maintained by
or for the benefit of the Company, its directors or officers as of the date of this Agreement and
any replacement or substitute policies.
“
Determination
” means a determination made by (a) a majority vote of Disinterested
Directors even if less than a quorum; (b) Independent Legal Counsel, in a written opinion addressed
to the Company and Indemnitee; (c) the stockholders of the Company; or (d) a decision by a court of
competent jurisdiction not subject to further appeal.
“
Disinterested Director
” shall be a director of the Company who is not or was not a
party to the Claim giving rise to the subject matter of a Determination.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended to date.
“
Expenses
” includes reasonable attorneys’ fees and all other reasonable costs, travel
expenses, fees of experts, transcript costs, filing fees, witness fees, telephone charges, postage,
copying costs, delivery service fees and other reasonable expenses and obligations of any nature
whatsoever paid or incurred in connection with investigating, prosecuting or defending, being a
witness in or participating in (including on appeal), or preparing to prosecute or defend, be a
witness in or participate in any Claim, for which Indemnitee is or becomes legally obligated to
pay.
“
Incumbent Board
” means the Board of Directors of the Company, as it is composed as of
the date of this Agreement.
“
Independent Legal Counsel
” shall mean a law firm or a member of a law firm that (a)
neither is nor in the past five (5) years has been retained to represent in any material matter the
Company, any Subsidiary, Indemnitee or any other party to the Claim, (b) under applicable standards
of professional conduct then prevailing would not have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee’s rights to indemnification
under this Agreement and (c) is reasonably acceptable to the Company and Indemnitee.
“
Loss
” means any amount which Indemnitee is legally obligated to pay as a result of
any Claim, including, without limitation (a) all judgments, penalties and fines, and amounts paid
or to be paid in settlement, (b) all interest, assessments and other charges paid or payable in
connection therewith and (c) any federal, state, local or foreign taxes imposed (net of the value
to Indemnitee of any tax benefits resulting from tax deductions or otherwise as a result of the
actual or deemed receipt of any payments under this Agreement, including the creation of the
Trust).
“
Other Enterprise
” means any corporation (other than the Company or any Subsidiary),
partnership, joint venture, association, employee benefit plan, trust or other enterprise or
organization to which Indemnitee renders service at the request of the Company or any Subsidiary.
3
“
Parent
”
shall have the meaning set forth in the regulations of the Securities and
Exchange Commission under the Securities Act of 1933, as amended; provided the term “Parent” shall
not include the board of directors of a corporation in its capacity as a board of directors, and
provided further that if the other party to any transaction referred to in Section 12.1.2 has no
Parent as so defined above, “Parent” shall mean such other party.
“
Person
” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government (or any subdivision,
department, commission or agency thereof), and includes without limitation any “person”, as such
term is used in Sections 13(d) and 14(d) of the Exchange Act.
“
Potential Change in Control
” shall be deemed to have occurred if (a) the Company
enters into an agreement or arrangement the consummation of which would result in the occurrence of
a Change in Control, (b) any Person (including the Company) publicly announces an intention to take
or to consider taking actions which if consummated would constitute a Change in Control or (c) the
Board of Directors of the Company adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
“
Subsidiary
” means any entity of which more than fifty percent (50%) of the
outstanding securities having ordinary voting power to elect a majority of the board of directors
or managers, as applicable, of such entity is now or hereafter owned, directly or indirectly, by
the Company.
“
Trust
”
has the meaning set forth in Section 9.2.
“
Voting Securities
” means any securities of the Company which vote generally in the
election of directors.
Section 2.
Indemnification.
2.1.
General Indemnity Obligation.
2.1.1. Subject to the remaining provisions of this Agreement, the Company hereby indemnifies
and holds Indemnitee harmless for any Losses or Expenses arising from any Claims relating to (or
arising in whole or in part out of) any Covered Event, including without limitation, any Claim the
basis of which is any actual or alleged breach of duty, neglect, error, misstatement, misleading
statement, omission or other act done or attempted by Indemnitee in the capacity as a Company
Agent, whether or not Indemnitee is acting or serving in such capacity at the date of this
Agreement, at the time liability is incurred or at the time the Claim is initiated.
2.1.2. The obligations of the Company under this Agreement shall apply to the fullest extent
authorized or permitted by the provisions of applicable law, as presently in effect or as changed
after the date of this Agreement, whether by statute or judicial decision (but, in the case of any
subsequent change, only to the extent that such change permits the Company to provide broader
indemnification than permitted prior to giving effect thereto).
2.1.3. Indemnitee shall not be entitled to indemnification pursuant to this Agreement in
connection with any Claim initiated by Indemnitee against the Company or any director or officer of
the Company, unless the Company has joined in or consented to the initiation of such Claim;
provided
,
however
, that the provisions of this
Section 2.1.3
shall not
apply (i) following a Change in Control to Claims seeking enforcement of this Agreement, the
certificate of incorporation or bylaws of the Company or any other agreement now or hereafter in
effect relating to indemnification for Covered Events or (ii)
4
absent a Change in Control, to Claims seeking enforcement of this Agreement, the certificate of
incorporation or bylaws of the Company or any other agreement now or hereafter in effect relating
to indemnification for Covered Events, but only if the Indemnitee is ultimately determined to be
entitled to indemnification.
2.1.4. If Indemnitee is entitled under any provision of this Agreement to indemnification by
the Company for some or a portion of the Losses or Expenses paid with respect to a Claim but not,
however, for the total amount thereof, the Company shall nevertheless indemnify and hold Indemnitee
harmless against the portion thereof to which Indemnitee is entitled.
2.1.5. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee
has been successful on the merits or otherwise in defense of any or all Claims relating to (or
arising in whole or in part out of) a Covered Event or in defense of any issue or matter therein,
including dismissal without prejudice, the Company shall indemnify and hold Indemnitee harmless
against all Expenses incurred in connection therewith.
2.2.
Indemnification for Serving as Witness and Certain Other Claims
. Notwithstanding
any other provision of this Agreement, the Company hereby indemnifies and holds Indemnitee harmless
for all Expenses in connection with (a) the preparation to serve or service as a witness in any
Claim in which Indemnitee is not a party, if such actual or proposed service as a witness arose by
reason of Indemnitee having served as a Company Agent on or after the date of this Agreement and
(b) any Claim initiated by Indemnitee on or after the date of this Agreement (i) for recovery under
any D&O Insurance; (ii) following a Change in Control, for enforcement of the indemnification
obligations of the Company under this Agreement, the Certificate of Incorporation or Bylaws of the
Company or any other agreement now or hereafter in effect relating to indemnification for Covered
Events, regardless of whether Indemnitee ultimately is determined to be entitled to such insurance
recovery or indemnification, as the case may be; or (iii) absent a Change in Control, for
enforcement of this Agreement, the Certificate of Incorporation or Bylaws of the Company or any
other agreement now or hereafter in effect relating to indemnification for Covered Events, but only
if the Indemnitee is ultimately determined to be entitled to indemnification.
Section 3.
Limitation on Indemnification
.
3.1.
Coverage Limitations
. No indemnification is available pursuant to the provisions
of this Agreement:
3.1.1. If such indemnification is not lawful;
3.1.2. If Indemnitee’s conduct giving rise to the Claim with respect to which indemnification
is requested was knowingly fraudulent, a knowing violation of law, deliberately dishonest or in bad
faith or constituted willful misconduct;
3.1.3. In respect of any Claim based upon or attributable to Indemnitee gaining in fact any
personal profit or advantage to which Indemnitee was not legally entitled;
3.1.4. In respect of any Claim based upon or in connection with a proceeding by or in the
right of the Company in which Indemnitee was adjudged liable to the Company unless and only to the
extent that the Court of Chancery of Delaware shall determine upon application that, despite the
adjudication of such liability but in view of all circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such expenses (including attorney’s fees) which the
Court of Chancery of Delaware shall deem proper;
5
3.1.5. In respect of any Claim for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act; or
3.2.
No Duplication of Payments
. The Company shall not be liable under this Agreement
to make any payment otherwise due and payable to the extent Indemnitee has otherwise actually
received payment (whether under the certificate of incorporation or the bylaws of the Company, the
D&O Insurance or otherwise) of any amounts otherwise due and payable under this Agreement.
Section 4.
Payments and Determinations
.
4.1.
Advancement and Reimbursement of Expenses
. If requested by Indemnitee, the
Company shall advance to Indemnitee, no later than five (5) business days following any such
request, any and all Expenses for which indemnification is available under
Section 2
(after
giving effect to
Section 3
). In order to obtain such advancement or reimbursement, the
Indemnitee must also furnish to the Company a written affirmation of his good faith belief that he
has conducted himself in good faith and that he reasonably believed that: (1) in the case of
conduct in his official capacity with the corporation, that his conduct was in its best interest;
and (2) in all other cases, that his conduct was at least not opposed to its best interests; and
(3) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful and has not admitted that his conduct was unlawful. In addition, Indemnitee must furnish
to the Company a written undertaking, executed personally or on his behalf, to repay the advance if
it is ultimately determined that he is not entitled to indemnification. Upon any Determination
that Indemnitee is not permitted to be indemnified for any Expenses so advanced, Indemnitee hereby
agrees to reimburse the Company (or, as appropriate, any Trust established pursuant to Section 9.2)
for all such amounts previously paid. Such obligation of reimbursement shall be unsecured and no
interest shall be charged thereon.
4.2.
Payment and Determination Procedures
.
4.2.1. To obtain indemnification under this Agreement, Indemnitee shall submit to the Company
a written request, together with such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a
request for indemnification, advise the Board of Directors in writing that Indemnitee has requested
indemnification.
4.2.2. Upon written request by Indemnitee for indemnification pursuant to Section 4.2.1, a
Determination with respect to Indemnitee’s entitlement thereto shall be made as promptly as
practicable in the specific case (a) if a Change in Control shall have occurred, as provided in
Section 4.2.3; and (b) if a Change in Control shall not have occurred, by (i) the Board of
Directors by a majority vote of Disinterested Directors, (ii) Independent Legal Counsel, if either
(A) there are no Disinterested Directors or (B) a majority vote of Disinterested Directors
otherwise so directs or (iii) the stockholders of the Company (if submitted by the Board of
Directors) but shares of stock owned by or voted under the control of any Indemnitee who is at the
time party to the proceeding may not be voted. If a Determination is made that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such
Determination.
4.2.3. If no Determination is made within sixty (60) days after receipt by the Company of a
request for indemnification by Indemnitee pursuant to
Section 4.2.1
, a Determination shall
be deemed to have been made that Indemnitee is entitled to the requested indemnification (and the
Company shall pay the related Losses and Expenses no later than ten (10) days after the expiration
of such 60-day period), except where such indemnification is not lawful;
provided
,
however
, that (a) such 60-day period
6
may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the Person
or Persons making the Determination in good faith require such additional time for obtaining or
evaluating the documentation and information relating thereto; and (b) the foregoing provisions of
this
Section 4.2.3
shall not apply (i) if the Determination is to be made by the
stockholders of the Company and if (A) within fifteen (15) days after receipt by the Company of the
request by Indemnitee pursuant to
Section 4.2.1
the Board of Directors has resolved to
submit such Determination to the stockholders at an annual meeting of the stockholders to be held
within seventy-five (75) days after such receipt, and such Determination is made at such annual
meeting, or (B) a special meeting of stockholders is called within fifteen (15) days after such
receipt for the purpose of making such Determination, such meeting is held for such purpose within
sixty (60) days after having been so called and such Determination is made at such special meeting,
or (ii) if the Determination is to be made by Independent Legal Counsel.
Section 5.
D & O Insurance
.
5.1.
Current Policies
. The Company hereby represents and warrants to Indemnitee that
Exhibit 1 contains a complete and accurate description of the D&O Insurance and that such insurance
is in full force and effect.
5.2.
Continued Coverage
. The Company shall maintain, to the extent practicable, the
D&O Insurance for so long as this Agreement remains in effect. The Company shall cause the D&O
Insurance to cover Indemnitee, in accordance with its terms and at all times such insurance is in
effect, to the maximum extent of the coverage provided thereby for any director or officer of the
Company.
5.3.
Indemnification
. In the event of any reduction in, or cancellation of, the D&O
Insurance (whether voluntary or involuntary on behalf of the Company), the Company shall, and
hereby agrees to, indemnify and hold Indemnitee harmless against any Losses or Expenses which
Indemnitee is or becomes obligated to pay as a result of the Company’s failure to maintain the D&O
Insurance in effect in accordance with the provisions of
Section 5.2
, to the fullest extent
permitted by applicable law, notwithstanding any provision of the certificate of incorporation or
the bylaws of the Company, or any other agreement now or hereafter in effect relating to
indemnification for Covered Events. The indemnification available under this
Section 5.3
is in addition to all other obligations of indemnification of the Company under this Agreement and
shall be the only remedy of Indemnitee for a breach by the Company of its obligations set forth in
Section 5.2
.
Section 6.
Subrogation
. In the event of any payment under this Agreement to or on
behalf of Indemnitee, the Company shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee against any Person other than the Company or Indemnitee in respect
of the Claim giving rise to such payment. Indemnitee shall execute all papers reasonably required
and shall do everything reasonably necessary to secure such rights, including the execution of such
documents reasonably necessary to enable the Company effectively to bring suit to enforce such
rights.
Section 7.
Notification and Defense of Claims
.
7.1.
Notice by Indemnitee
. Indemnitee shall give notice in writing to the Company as
soon as practicable after Indemnitee becomes aware of any Claim with respect to which
indemnification will or could be sought under this Agreement;
provided
,
however
,
that the failure of Indemnitee to give such notice, or any delay in giving such notice, shall not
relieve the Company of its obligations under this Agreement except to the extent the Company is
actually prejudiced by any such failure or delay.
7.2.
Insurance
. The Company shall give prompt notice of the commencement of any Claim
relating to Covered Events to the insurers on the D&O Insurance, if any, in accordance with the
7
procedures set forth in the respective policies in favor of Indemnitee. The Company shall
thereafter take all necessary action to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such Claims in accordance with the terms of such policies.
7.3.
Defense
.
7.3.1. In the event any Claim relating to Covered Events is by or in the right of the Company,
Indemnitee may, at the option of Indemnitee, either control the defense thereof or accept the
defense provided under the D&O Insurance;
provided
,
however
, that Indemnitee may
not control the defense if such decision would jeopardize the coverage provided by the D&O
Insurance, if any, to the Company or the other directors and officers covered thereby; and
provided further
that the amounts expended by the Company shall be reimbursed to the
Company by the Indemnitee if the standards and requirements of Section 145 of the DGCL so require.
7.3.2. In the event any Claim relating to Covered Events is other than by or in the right of
the Company, Indemnitee may, at the option of Indemnitee, either control the defense thereof,
require the Company to defend or accept the defense provided under the D&O Insurance;
provided
,
however
, that Indemnitee may not control the defense or require the
Company to defend if such decision would jeopardize the coverage provided by the D&O Insurance to
the Company or the other directors and officers covered thereby. In the event that Indemnitee
requires the Company to so defend, or in the event that Indemnitee proceeds under the D&O Insurance
but Indemnitee determines that such insurers under the D&O Insurance are unable or unwilling to
adequately defend Indemnitee against any such Claim, the Company shall promptly undertake to defend
any such Claim, at the Company’s sole cost and expense, utilizing counsel of Indemnitee’s choice
who has been approved by the Company. If appropriate, the Company shall have the right to
participate in the defense of any such Claim.
7.3.3. In the event the Company shall fail, as required by any election by Indemnitee pursuant
to
Section 7.3.2
, timely to defend Indemnitee against any such Claim, Indemnitee shall have
the right to do so, including without limitation, the right (notwithstanding
Section 7.3.4
)
to make any settlement thereof, and to recover from the Company, to the extent otherwise permitted
by this Agreement, all Expenses and Losses paid as a result thereof.
7.3.4. The Company shall have no obligation under this Agreement with respect to any amounts
paid or to be paid in settlement of any Claim without the express prior written consent of the
Company to any related settlement. In no event shall the Company authorize any settlement imposing
any liability or other obligations on Indemnitee without the express prior written consent of
Indemnitee. Neither the Company nor Indemnitee shall unreasonably withhold consent to any proposed
settlement.
Section 8.
Determinations and Related Matters.
8.1.
Presumptions
.
8.1.1. If a Change in Control shall have occurred, Indemnitee shall be entitled to a
rebuttable presumption that Indemnitee is entitled to indemnification under this Agreement and the
Company shall have the burden of proof in rebutting such presumption.
8.1.2. The termination of any claim by judgment, order or settlement (whether with or without
court approval) or any conviction, guilty plea or plea of
nolo contendere
or its equivalent, which
such conviction or plea does not establish (through the Indemnitee’s admission or otherwise) that
the Indemnitee’s conduct was not subject to indemnification hereunder, shall not adversely affect
either the right of Indemnitee to indemnification under this Agreement or the presumptions to which
Indemnitee is
8
otherwise entitled pursuant to the provisions of this Agreement nor create a presumption that
Indemnitee did not meet any particular standard of conduct or have a particular belief or that a
court has determined that indemnification is not permitted by applicable law.
8.2.
Appeals; Enforcement
.
8.2.1. In the event that (a) a Determination is made that Indemnitee shall not be entitled to
indemnification under this Agreement, (b) any Determination to be made by Independent Legal Counsel
is not made within ninety (90) days of receipt by the Company of a request for indemnification
pursuant to
Section 4.2.1
or (c) the Company fails to otherwise perform any of its
obligations under this Agreement (including, without limitation, its obligation to make payments to
Indemnitee following any Determination made or deemed to have been made that such payments are
appropriate), Indemnitee shall have the right to commence a Claim in any court of competent
jurisdiction, as appropriate, to seek a Determination by the court, to challenge or appeal any
Determination which has been made, or to otherwise enforce this Agreement. If a Change of Control
shall have occurred, Indemnitee shall have the option to have any such Claim conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association. Any such judicial
proceeding challenging or appealing any Determination shall be deemed to be conducted de novo and
without prejudice by reason of any prior Determination to the effect that Indemnitee is not
entitled to indemnification under this Agreement. Any such Claim shall be at the sole expense of
Indemnitee except as provided in
Section 9.3
.
8.2.2. If a Determination shall have been made or deemed to have been made pursuant to this
Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such
Determination in any judicial proceeding or arbitration commenced pursuant to this
Section
8.2
, except if such indemnification is unlawful.
8.2.3. The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this
Section 8.2
that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of this Agreement. The Company
hereby consents to service of process and to appear in any judicial or arbitration proceedings and
shall not oppose Indemnitee’s right to commence any such proceedings.
8.3.
Procedures
. Indemnitee shall cooperate with the Company and with any Person
making any Determination with respect to any Claim for which a claim for indemnification under this
Agreement has been made, as the Company may reasonably require. Indemnitee shall provide to the
Company or the Person making any Determination, upon reasonable advance request, any documentation
or information reasonably available to Indemnitee and necessary to (a) the Company with respect to
any such Claim or (b) the Person making any Determination with respect thereto.
Section 9.
Change in Control Procedures
.
9.1.
Determinations
. If there is a Change in Control, any Determination to be made
under Section 4 shall be made by Independent Legal Counsel selected by Indemnitee and approved by
the Company (which approval shall not be unreasonably withheld). The Company shall pay the
reasonable fees of the Independent Legal Counsel and indemnify fully such Independent Legal Counsel
against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising
out of or relating to this Agreement or the engagement of Independent Legal Counsel pursuant
hereto.
9.2.
Establishment of Trust
. Following the occurrence of any Potential Change in
Control, the Company, upon receipt of a written request from Indemnitee, shall create a Trust (the
“Trust”) for the
9
benefit of Indemnitee, the trustee of which shall be a bank or similar financial institution with
trust powers chosen by Indemnitee. From time to time, upon the written request of Indemnitee, the
Company shall fund the Trust in amounts sufficient to satisfy any and all Losses and Expenses
reasonably anticipated at the time of each such request to be incurred by Indemnitee for which
indemnification may be available under this Agreement. The amount or amounts to be deposited in
the Trust pursuant to the foregoing funding obligation shall be determined by mutual agreement of
Indemnitee and the Company or, if the Company and Indemnitee are unable to reach such an agreement,
or, in any event, a Change in Control has occurred by Independent Legal Counsel (selected pursuant
to
Section 9.1
). The terms of the Trust shall provide that, except upon the prior written
consent of Indemnitee and the Company, (a) the Trust shall not be revoked or the principal thereof
invaded, other than to make payments to unsatisfied judgment creditors of the Company, (b) the
Trust shall continue to be funded by the Company in accordance with the funding obligations set
forth in this Section, (c) the Trustee shall promptly pay or advance to Indemnitee any amounts to
which Indemnitee shall be entitled pursuant to this Agreement, and (d) all unexpended funds in the
Trust shall revert to the Company upon a Determination by Independent Legal Counsel (selected
pursuant to
Section 9.1
) or a court of competent jurisdiction that Indemnitee has been
fully indemnified under the terms of this Agreement. All income earned on the assets held in the
trust shall be reported as income by the Company for federal, state, local and foreign tax
purposes.
9.3.
Expenses
. Following any Change in Control, the Company shall be liable for, and
shall pay the Expenses paid or incurred by Indemnitee in connection with the making of any
Determination (irrespective of the determination as to Indemnitee’s entitlement to indemnification)
or the prosecution of any Claim pursuant to
Section 8.2
, and the Company hereby agrees to
indemnify and hold Indemnitee harmless therefrom. If requested by counsel for Indemnitee, the
Company shall promptly give such counsel an appropriate written agreement with respect to the
payment of its fees and expenses and such other matters as may be reasonably requested by such
counsel.
Section 10.
Period of Limitations
. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company, any Subsidiary, any Other Enterprise or
any Affiliate of the Company against Indemnitee or Indemnitee’s spouse, heirs, executors,
administrators or personal or legal representatives after the expiration of two years from the date
of accrual of such cause of action, and any claim or cause of action of the Company, any
Subsidiary, any Other Enterprise or any Affiliate of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such two-year period;
provided
,
however
, that if any shorter period of limitations, whether established
by statute or judicial decision, is otherwise applicable to any such cause of action such shorter
period shall govern.
Section 11.
Contribution
. If the indemnification provisions of this Agreement should
be unenforceable under applicable law in whole or in part or insufficient to hold Indemnitee
harmless in respect of any Losses and Expenses incurred by Indemnitee, then for purposes of this
Section 11
, the Company shall be treated as if it were, or was threatened to be made, a
party defendant to the subject Claim and the Company shall contribute to the amounts paid or
payable by Indemnitee as a result of such Losses and Expenses incurred by Indemnitee in such
proportion as is appropriate to reflect the relative benefits accruing to the Company on the one
hand and Indemnitee on the other and the relative fault of the Company on the one hand and
Indemnitee on the other in connection with such Claim, as well as any other relevant equitable
considerations. For purposes of this
Section 11
the relative benefit of the Company shall
be deemed to be the benefits accruing to it and to all of its directors, officers, employees and
agents (other than Indemnitee) on the one hand, as a group and treated as one entity, and the
relative benefit of Indemnitee shall be deemed to be an amount not greater than the Indemnitee’s
yearly base salary or Indemnitee’s compensation from the Company during the first year in which the
Covered Event forming the basis for the subject Claim was alleged to have occurred. The relative
fault shall be determined by reference to, among other things, the fault of the Company and all of
its directors, officers,
10
employees and agents (other than Indemnitee) on the one hand, as a group and treated as one entity,
and Indemnitee’s and such group’s relative intent, knowledge, access to information and opportunity
to have altered or prevented the Covered Event forming the basis for the subject Claim.
Section 12.
Miscellaneous Provisions
.
12.1.
Successors and Assigns, Etc
.
12.1.1. This Agreement shall be binding upon and inure to the benefit of (a) the Company, its
successors and assigns (including any direct or indirect successor by merger, consolidation or
operation of law or by transfer of all or substantially all of its assets) and (b) Indemnitee and
the heirs, personal and legal representatives, executors, administrators or assigns of Indemnitee.
12.1.2. The Company shall not consummate any consolidation, merger or other business
combination, nor will it transfer 50% or more of its assets (in one or a series of related
transactions), unless the ultimate Parent of the successor to the business or assets of the Company
shall have first executed an agreement, in form and substance satisfactory to Indemnitee, to
expressly assume all obligations of the Company under this Agreement and agree to perform this
Agreement in accordance with its terms, in the same manner and to the same extent that the Company
would be required to perform this Agreement if no such transaction had taken place; provided that,
if the Parent is not the Company, the legality of payment of indemnity by the Parent shall be
determined by reference to the fact that such indemnity is to be paid by the Parent rather than the
Company.
12.2.
Severability
. The provisions of this Agreement are severable. If any provision
of this Agreement shall be held by any court of competent jurisdiction to be invalid, void or
unenforceable, such provision shall be deemed to be modified to the minimum extent necessary to
avoid a violation of law and, as so modified, such provision and the remaining provisions shall
remain valid and enforceable in accordance with their terms to the fullest extent permitted by law.
12.3.
Rights Not Exclusive; Continuation of Right of Indemnification
. Nothing in this
Agreement shall be deemed to diminish or otherwise restrict Indemnitee’s right to indemnification
pursuant to any provision of the certificate of incorporation or bylaws of the Company, any
agreement, vote of stockholders or Disinterested Directors, applicable law or otherwise. This
Agreement shall be effective as of the date first above written and continue in effect until no
Claims relating to any Covered Event may be asserted against Indemnitee and until any Claims
commenced prior thereto are finally terminated and resolved, regardless of whether Indemnitee
continues to serve as a director of the Company, any Subsidiary or any Other Enterprise.
12.4.
No Employment Agreement
. Nothing contained in this Agreement shall be construed
as giving Indemnitee any right to be retained in the employ of the Company, any Subsidiary or any
Other Enterprise.
12.5.
Subsequent Amendment
. No amendment, termination or repeal of any provision of
the certificate of incorporation or bylaws of the Company, or any respective successors thereto, or
of any relevant provision of any applicable law, shall affect or diminish in any way the rights of
Indemnitee to indemnification, or the obligations of the Company, arising under this Agreement,
whether the alleged actions or conduct of Indemnitee giving rise to the necessity of such
indemnification arose before or after any such amendment, termination or repeal.
12.6.
Notices
. Notices required under this Agreement shall be given in writing and
shall be deemed given when delivered in person or sent by certified or registered mail, return
receipt requested,
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postage prepaid. Notices shall be directed to the Company at Luminex Corporation, 12212
Technology Boulevard, Austin, Texas 78727, Attention: Corporate Secretary, and to Indemnitee at
the address set forth on the signature page hereto (or such other address as either party may
designate in writing to the other).
12.7.
Governing Law
. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts made and performed in
such state without giving effect to the principles of conflict of laws.
12.8.
Headings
. The headings of the Sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute a substantive part of this Agreement or to
affect the construction thereof.
12.9.
Counterparts
. This Agreement may be executed in any number of counterparts all
of which taken together shall constitute one instrument.
12.10.
Modification and Waiver
. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions of this Agreement shall constitute, or be deemed to constitute, a waiver of
any other provisions hereof (whether or not similar) nor shall any such waiver constitute a
continuing waiver.
12.11.
Integration
. This Agreement contains the entire agreement and understanding of
the parties with respect to the subject matter hereof. There are no restrictions, agreements,
promises, representations, warranties, covenants or undertakings with respect to the subject matter
hereof other than those expressly set forth or referred to herein. This Agreement expressly
supersedes all prior agreements and understandings, if any, between the parties with respect to the
subject matter hereof.
[
Signature page follows
.]
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The parties hereto have caused this Agreement to be duly executed as of the day and year first
above written.
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LUMINEX CORPORATION
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By:
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Name:
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Title:
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INDEMNITEE
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Name:
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Address:
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