Exhibit 3.1
BYLAWS
OF
ATHERSYS, INC.
TABLE OF CONTENTS
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Page
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ARTICLE I
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OFFICES
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1
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Section 1.
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Registered Office
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1
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Section 2.
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Other Offices
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1
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ARTICLE II
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STOCKHOLDERS
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1
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Section 1.
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Place of Meetings
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1
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Section 2.
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Annual Meeting
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1
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Section 3.
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List of Stockholders
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1
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Section 4.
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Special Meetings
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1
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Section 5.
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Notice
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2
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Section 6.
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Quorum
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2
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Section 7.
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Voting
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2
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Section 8.
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Method of Voting
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2
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Section 9.
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Record Date
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3
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Section 10.
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Action by Consent
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3
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ARTICLE III
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BOARD OF DIRECTORS
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3
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Section 1.
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Management
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3
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Section 2.
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Qualification; Election; Term
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3
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Section 3.
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Number; Election; Term; Qualification
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3
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Section 4.
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Removal
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4
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Section 5.
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Vacancies
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4
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Section 6.
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Place of Meetings
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4
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Section 7.
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Annual Meeting
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4
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Section 8.
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Regular Meetings
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4
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Section 9.
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Special Meetings
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4
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Section 10.
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Quorum
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4
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Section 11.
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Interested Directors
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5
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Section 12.
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Action by Consent
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5
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Section 13.
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Compensation of Directors
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5
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ARTICLE IV
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COMMITTEES
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5
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Section 1.
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Designation
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5
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-i-
TABLE OF CONTENTS
(continued)
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Page
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Section 2.
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Number; Qualification; Term
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5
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Section 3.
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Authority
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6
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Section 4.
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Change in Number
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6
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Section 5.
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Removal
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6
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Section 6.
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Vacancies
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6
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Section 7.
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Meetings
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6
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Section 8.
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Quorum; Majority Vote
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7
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Section 9.
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Compensation
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7
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ARTICLE V
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NOTICE
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7
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Section 1.
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Form of Notice
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7
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Section 2.
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Waiver
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7
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ARTICLE VI
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OFFICERS AND AGENTS
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7
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Section 1.
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In General
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7
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Section 2.
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Election
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8
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Section 3.
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Other Officers and Agents
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8
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Section 4.
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Compensation
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8
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Section 5.
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Term of Office and Removal
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8
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Section 6.
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Employment and Other Contracts
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8
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Section 7.
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Chairman of the Board of Directors
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Section 8.
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Chief Executive Officer
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8
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Section 9.
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President
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8
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Section 10.
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Vice Presidents
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8
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Section 11.
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Secretary
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9
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Section 12.
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Assistant Secretaries
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9
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Section 13.
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Treasurer
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9
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Section 14.
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Assistant Treasurers
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9
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Section 15.
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Bonding
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9
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ARTICLE VII
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CERTIFICATES REPRESENTING SHARES
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10
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Section 1.
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Form of Certificates
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10
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Section 2.
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Lost Certificates
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10
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-ii-
TABLE OF CONTENTS
(continued)
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Page
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Section 3.
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Transfer Agent and Registrar
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10
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Section 4.
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Denial of Preemptive Rights
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11
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ARTICLE VIII
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GENERAL PROVISIONS
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11
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Section 1.
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Dividends
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Section 2.
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Reserves
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Section 3.
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Telephone and Similar Meetings
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Section 4.
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Books and Records
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11
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Section 5.
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Fiscal Year
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11
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Section 6.
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Seal
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12
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Section 7.
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Advances of Expenses
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12
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Section 8.
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Indemnification
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12
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Section 9.
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Employee Benefit Plans
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12
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Section 10.
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Insurance
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12
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Section 11.
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Resignation
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12
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Section 12.
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Amendment of Bylaws
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12
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Section 13.
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Construction
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12
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Section 14.
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Relation to the Certificate of Incorporation
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13
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-iii-
BYLAWS
OF
ATHERSYS, INC.
ARTICLE I
Section 1.
Registered Office. The registered office and registered agent of
Athersys, Inc.
(the Corporation) will be as from time to time set forth in the Corporations Certificate of
Incorporation or in any certificate filed with the Secretary of State of the State of Delaware,
and the appropriate county Recorder or Recorders, as the case may be, to amend such information.
Section 2. Other Offices. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
Section 1. Place of Meetings. All meetings of the stockholders for the election of Directors
will be held at such place, within or without the State of Delaware, as may be fixed from time to
time by the Board of Directors. Meetings of stockholders for any other purpose may be held at such
time and place, within or without the State of Delaware, as may be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meeting. An annual meeting of the stockholders will be held at such time as
may be determined by the Board of Directors, at which meeting the stockholders will elect a Board
of Directors, and transact such other business as may properly be brought before the meeting.
Section 3. List of Stockholders. At least ten days before each meeting of stockholders, a
complete list of the stockholders entitled to vote at said meeting, arranged in alphabetical order,
with the address of and the number of voting shares registered in the name of each, will be
prepared by the officer or agent having charge of the stock transfer books. Such list will be open
to the examination of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, at the principal place of
business of the Corporation. Such list will be produced and kept open at the time and place of the
meeting during the whole time thereof, and will be subject to the inspection of any stockholder who
may be present.
Section 4. Special Meetings. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by law, the Certificate of Incorporation or these Bylaws, may
be called by the Chairman of the Board, the Chief Executive Officer, the President, or the
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Board of Directors, or will be called by the Chief Executive Officer, President, or Secretary,
at the request in writing of the holders of not less than 30% of all the shares issued, outstanding
and entitled to vote. Such request will state the purpose or purposes of the proposed meeting.
Business transacted at all special meetings will be confined to the purposes stated in the notice
of the meeting unless all stockholders entitled to vote are present and consent.
Section 5. Notice. Written or printed notice stating the place, day and hour of any meeting
of the stockholders and, in case of a special meeting, the purpose or purposes for which the
meeting is called, will be delivered not less than ten nor more than sixty days before the date of
the meeting, either personally or by mail, by or at the direction of the Chairman of the Board, the
Chief Executive Officer, the President, the Secretary, or the officer or person calling the
meeting, to each stockholder of record entitled to vote at the meeting. If mailed, such notice
will be deemed to be delivered when deposited in the United States mail, addressed to the
stockholder at his address as it appears on the stock transfer books of the Corporation, with
postage thereon prepaid.
Section 6. Quorum. At all meetings of the stockholders, the presence in person or by proxy of
the holders of a majority of the shares issued and outstanding and entitled to vote on that matter
will be necessary and sufficient to constitute a quorum for the transaction of business except as
otherwise provided by law, the Certificate of Incorporation or these Bylaws. If, however, such
quorum is not present or represented at any meeting of the stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, will 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. 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 will be given to
each stockholder of record entitled to vote at the meeting. 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 notified.
Section 7. Voting. When a quorum is present at any meeting of the Corporations stockholders,
the vote of the holders of a majority of the shares present in person or by proxy entitled to vote
on, and voted for or against, any matter will decide any questions brought before such meeting,
unless the question is one upon which, by express provision of law, the Certificate of
Incorporation or these Bylaws, a different vote is required, in which case such express provision
will govern and control the decision of such question. The stockholders present in person or by
proxy at a duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
Section 8. Method of Voting. Each outstanding share of the Corporations capital stock,
regardless of class or series, will be entitled to one vote on each matter submitted to a vote at a
meeting of stockholders, except to the extent that the voting rights of the shares of any class or
series are limited or denied by the Certificate of Incorporation, as amended from time to time.
At any meeting of the stockholders, every stockholder having the right to vote will be entitled to
vote in person, or by proxy appointed by an instrument in writing subscribed by such stockholder
and bearing a date not more than three years prior to such meeting, unless such instrument provides
for a longer period. A telegram, telex, cablegram or similar transmission by the stockholder, or a
photographic, photostatic, facsimile or similar reproduction of a writing
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executed by the stockholder, shall be treated as an execution in writing for purposes of the
preceding sentence. Each proxy will be revocable unless expressly provided therein to be
irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest
with which it is coupled is an interest in the stock itself or an interest in the Corporation
generally. Such proxy will be filed with the Secretary of the Corporation prior to or at the time
of the meeting. Voting on any question or in any election, other than for directors, may be by
voice vote or show of hands unless the presiding officer orders, or any stockholder demands, that
voting be by written ballot.
Section 9. Record Date. The Board of Directors may fix in advance a record date for the
purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders,
which record date will not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date will not be less than ten nor more than
sixty days prior to such meeting. In the absence of any action by the Board of Directors, the
close of business on the date next preceding the day on which the notice is given will be the
record date, or, if notice is waived, the close of business on the day next preceding the day on
which the meeting is held will be the record date.
Section 10. Action by Consent. Except as prohibited by law, any action required or permitted
by law, the Certificate of Incorporation or these Bylaws to be taken at a meeting of the
stockholders of the Corporation may be taken without a meeting if a consent or consents in writing,
setting forth the action so taken, is signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and will be delivered
to the Corporation by delivery to its registered office in Delaware, its principal place of
business or an officer or agent of the Corporation having custody of the minute book.
ARTICLE III
Section 1. Management. The business and affairs of the Corporation will be managed by or
under the direction of its Board of Directors who may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by law, by the Certificate of Incorporation or by
these Bylaws directed or required to be exercised or done by the stockholders.
Section 2. Qualification; Election; Term. Each Director must be a natural person at least 18
years of age. None of the Directors need be a stockholder of the Corporation or a resident of the
State of Delaware. The Directors will be elected by written ballot, by plurality vote at the
annual meeting of the stockholders, except as hereinafter provided, and each Director elected will
hold office until whichever of the following occurs first: his successor is elected and qualified,
his resignation, his removal from office by the stockholders or his death.
Section 3. Number; Election; Term; Qualification. The number of Directors which shall
constitute the Board of Directors shall be not less than one. The number of Directors which
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shall constitute the entire Board of Directors shall be determined by resolution of the Board
of Directors at any meeting thereof, but shall never be less than one. No decrease in the number
of Directors will have the effect of shortening the term of any incumbent Director. At each
annual meeting of stockholders, Directors shall be elected to hold office until their successors
are elected and qualified or until their earlier resignation, removal from office or death. No
Director need be a stockholder, a resident of the State of Delaware, or a citizen of the United
States.
Section 4. Removal. Any Director may be removed either for or without cause at any special
meeting of stockholders by the affirmative vote of the stockholders representing not less than
two-thirds of the voting power of the issued and outstanding stock entitled to vote for the
election of such Director; provided, that notice of intention to act upon such matter has been
given in the notice calling such meeting.
Section 5. Vacancies. Newly created directorships resulting from any increase in the
authorized number of Directors and any vacancies occurring in the Board of Directors caused by
death, resignation, retirement, disqualification or removal from office of any Directors or
otherwise, may be filled by the vote of a majority of the Directors then in office, though less
than a quorum, or a successor or successors may be chosen at a special meeting of the stockholders
called for that purpose. A Director elected to fill a vacancy will be elected for the unexpired
term of his predecessor in office or until whichever of the following occurs first: his successor
is elected and qualified, his resignation, his removal from office by the stockholders or his
death.
Section 6. Place of Meetings. Meetings of the Board of Directors, regular or special, may be
held at such place within or without the State of Delaware as may be fixed from time to time by the
Board of Directors.
Section 7. Annual Meeting. The first meeting of each newly elected Board of Directors will
be held without further notice immediately following the annual meeting of stockholders and at the
same place, unless by unanimous consent, the Directors then elected and serving change such time or
place.
Section 8. Regular Meetings. Regular meetings of the Board of Directors may be held with or
without notice and at such time and place as is from time to time determined by resolution of the
Board of Directors.
Section 9. Special Meetings. Special meetings of the Board of Directors may be called by the
Chairman of the Board, the Chief Executive Officer, or the President, on oral or written notice to
each Director, given either personally, by telephone, by facsimile or by mail, delivered not less
than twenty-four hours in advance of the meeting; special meetings will be called by the Chairman
of the Board, Chief Executive Officer, President, or Secretary in like manner and on like notice on
the written request of at least two Directors. Except as may be otherwise expressly provided by
law, the Certificate of Incorporation or these Bylaws, neither the business to be transacted at,
nor the purpose of, any special meeting need be specified in a notice or waiver of notice.
Section 10. Quorum. At all meetings of the Board of Directors the presence of a majority of
the number of Directors then in office will be necessary and sufficient to constitute a quorum for
the transaction of business, and the affirmative vote of at least a majority of the
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Directors present at any meeting at which there is a quorum will be the act of the Board of
Directors, except as may be otherwise specifically provided by law, the Certificate of
Incorporation or these Bylaws. If a quorum is not present at any meeting of the Board of
Directors, the Directors present thereat may adjourn the meeting from time to time without notice
other than announcement at the meeting, until a quorum is present.
Section 11. Interested Directors. No contract or transaction between the Corporation and one
or more of its Directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of the Corporations Directors
or officers are directors or officers or have a financial interest, will be void or voidable solely
for this reason, solely because the Director or officer is present at or participates in the
meeting of the Board of Directors or committee thereof that authorizes the contract or transaction,
or solely because his or their votes are counted for such purpose, if: (i) the material facts as to
his relationship or interest and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority of the disinterested
Directors, even though the disinterested Directors be less than a quorum, (ii) the material facts
as to his relationship or interest and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders or (iii) the contract or transaction is fair as
to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee that
authorizes the contract or transaction.
Section 12. Action by Consent. Any action required or permitted to be taken at any meeting of
the Board of Directors or any committee of the Board of Directors may be taken without such a
meeting if a consent or consents in writing, setting forth the action so taken, is signed by all
the members of the Board of Directors or such committee, as the case may be.
Section 13. Compensation of Directors. Directors will receive such compensation for their
services and reimbursement for their expenses as the Board of Directors, by resolution, may
establish; provided that nothing herein contained will be construed to preclude any Director from
serving the Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
Section 1. Designation. The Board of Directors may, by resolution adopted by a majority of
the whole Board, designate from among its members an executive committee and one or more such other
committees as it may determine necessary.
Section 2. Number; Qualification; Term. The executive committee and any other designated
committees shall consist of one or more Directors. The committees shall serve at the pleasure of
the Board of Directors.
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Section 3. Authority. Each committee, to the extent provided in such resolution, shall have
and may exercise all of the authority of the Board of Directors in the management of the business
and affairs of the Corporation, except in the following matters and except where action of the full
Board of Directors is required by statute or by the Certificate of Incorporation:
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(a)
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Amending the Certificate of Incorporation;
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(b)
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Amending, altering or repealing the Bylaws of the Corporation or adopting new Bylaws;
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(c)
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Approving and/or recommending or submitting to stockholders:
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(1)
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Merger
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(2)
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Consolidation
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(3)
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sale, lease (as lessor), exchange or other disposition of all or substantially all the
property and assets of the Corporation;
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(4)
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dissolution;
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(d)
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Filling vacancies in the Board of Directors or any such committee;
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(e)
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Electing or removing officers of the Corporation or members of any such committee;
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(f)
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Fixing compensation of any person who is a member of any such committee;
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(g)
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Declaring dividends; and
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(h)
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Altering or repealing any resolution of the Board of Directors.
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Section 4. Change in Number. The number of committee members may be increased or decreased
(but not below one) from time to time by resolution adopted by a majority of the whole Board of
Directors.
Section 5. Removal. Any committee member may be removed by the Board of Directors by the
affirmative vote of a majority of the whole Board, whenever in its judgment the best interests of
the Corporation will be served thereby.
Section 6. Vacancies. A vacancy occurring in any committee (by death, resignation, removal or
otherwise) may be filled by the Board of Directors in the manner provided for original designation
in Section 1 of this Article.
Section 7. Meetings. Time, place and notice (if any) of all committee meetings shall be
determined by the respective committee. Unless otherwise determined by a particular committee,
meetings of the committees may be called by any Director of the Corporation on not less than 12
hours notice to each member of the committee, either personally or by mail, telephone (including
voice mail), email or other electronic or other delivery means. Neither the
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business to be transacted at, nor the purpose of, any meeting need be specified in a notice or
waiver of notice of any meeting. (See also Section 3 of Article VIII).
Section 8. Quorum; Majority Vote. At meetings of any committee, a majority of the number of
members designated by the Board of Directors shall constitute a quorum for the transaction of
business. The act of a majority of the members present at any meeting at which a quorum is present
shall be the act of the committee, except as otherwise specifically provided by statute or by the
Certificate of Incorporation or by these Bylaws. If a quorum is not present at a meeting of the
committee, the members present thereat may adjourn the meeting from time to time, without notice
other than an announcement at the meeting until a quorum is present.
Section 9. Compensation. Compensation of committee members shall be fixed pursuant to the
provisions of Section 13 of Article III of these bylaws.
ARTICLE V
Section 1. Form of Notice. Whenever by law, the Certificate of Incorporation or of these
Bylaws, notice is to be given to any Director or stockholder, and no provision is made as to how
such notice will be given, such notice may be given: (i) in writing, by mail, postage prepaid,
addressed to such Director or stockholder at such address as appears on the books of the
Corporation or (ii) in any other method permitted by law. Any notice required or permitted to be
given by mail will be deemed to be given at the time the same is deposited in the United States
mail.
Section 2. Waiver. Whenever any notice is required to be given to any stockholder or Director
of the Corporation as required by law, the Certificate of Incorporation or these Bylaws, a waiver
thereof in writing signed by the person or persons entitled to such notice, whether before or after
the time stated in such notice, will be equivalent to the giving of such notice. Attendance of a
stockholder or Director at a meeting will constitute a waiver of notice of such meeting, except
where such stockholder or Director attends for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business on the ground that the meeting has not been
lawfully called or convened.
ARTICLE VI
Section 1. In General. The officers of the Corporation will be elected by the Board of
Directors and will be a Chief Executive Officer, a President, a Secretary, and a Treasurer. The
Board of Directors may also elect a Chairman of the Board, Vice Presidents, Assistant Vice
Presidents, Assistant Secretaries, and Assistant Treasurers. Any two or more offices may be held
by the same person.
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Section 2. Election. The Board of Directors, at its first meeting after each annual meeting
of stockholders, will elect the officers, none of whom need be a member of the Board of Directors.
Section 3. Other Officers and Agents. The Board of Directors may also elect and appoint such
other officers and agents as it deems necessary, who will be elected and appointed for such terms
and will exercise such powers and perform such duties as may be determined from time to time by the
Board of Directors.
Section 4. Compensation. The compensation of all officers and agents of the Corporation will
be fixed by the Board of Directors or any committee of the Board of Directors, if so authorized by
the Board of Directors.
Section 5. Term of Office and Removal. Each officer of the Corporation will hold office until
his death, his resignation or removal from office, or the election and qualification of his
successor, whichever occurs first. Any officer or agent elected or appointed by the Board of
Directors may be removed at any time, for or without cause, by the affirmative vote of a majority
of the entire Board of Directors, but such removal will not prejudice the contract rights, if any,
of the person so removed. If the office of any officer becomes vacant for any reason, the vacancy
may be filled by the Board of Directors.
Section 6. Employment and Other Contracts. The Board of Directors may authorize any officer
or officers or agent or agents to enter into any contract or execute and deliver any instrument in
the name or on behalf of the Corporation, and such authority may be general or confined to specific
instances. The Board of Directors may, when it believes the interest of the Corporation will best
be served thereby, authorize executive employment contracts that will have terms no longer than ten
years and contain such other terms and conditions as the Board of Directors deems appropriate.
Nothing herein will limit the authority of the Board of Directors to authorize employment contracts
for shorter terms.
Section 7. Chairman of the Board of Directors. If the Board of Directors has elected a
Chairman of the Board, he will preside at all meetings of the stockholders and the Board of
Directors.
Section 8. Chief Executive Officer. The Chief Executive Officer will have general charge and
supervision of the business of the Corporation and will exercise and perform all the duties
incident to the office of the Chief Executive Officer. He will have direct supervision of the
other officers and will also exercise and perform such powers and duties as may be assigned to him
by the Board of Directors. During the absence or disability of the President, the Chief Executive
Officer will exercise the powers and perform the duties of the President.
Section 9. President. The President will, in the absence of the Chairman of the Board,
preside at all meetings of the stockholders and the Board of Directors. The President will have
all powers and perform all duties incident to the office of President and will have such other
powers and perform such other duties as the Board of Directors may from time to time prescribe or
as the Chief Executive Officer may from time to time delegate to him.
Section 10. Vice Presidents. Each Vice President will have the usual and customary powers and
perform the usual and customary duties incident to the office of Vice President, and
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will have such other powers and perform such other duties as the Board of Directors or any
committee thereof may from time to time prescribe or as the Chief Executive Officer or the
President may from time to time delegate to him. In the absence or disability of the President and
the Chairman of the Board, a Vice President designated by the Board of Directors, or in the absence
of such designation the Vice Presidents in the order of their seniority in office, will exercise
the powers and perform the duties of the President.
Section 11. Secretary. The Secretary will attend all meetings of the stockholders and record
all votes and the minutes of all proceedings in a book to be kept for that purpose. The Secretary
will perform like duties for the Board of Directors and committees thereof when required. The
Secretary will give, or cause to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors. The Secretary will keep in safe custody the seal of the
Corporation. The Secretary will be under the supervision of the Chief Executive Officer and the
President. The Secretary will have such other powers and perform such other duties as the Board of
Directors may from time to time prescribe or as the Chief Executive Officer or the President may
from time to time delegate to him.
Section 12. Assistant Secretaries. The Assistant Secretaries in the order of their seniority
in office, unless otherwise determined by the Board of Directors, will, in the absence or
disability of the Secretary, exercise the powers and perform the duties of the Secretary. They
will have such other powers and perform such other duties as the Board of Directors may from time
to time prescribe or as the Chief Executive Officer or the President may from time to time delegate
to them.
Section 13. Treasurer. The Treasurer will have responsibility for the receipt and
disbursement of all corporate funds and securities, will keep full and accurate accounts of such
receipts and disbursements, and will deposit or cause to be deposited all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Treasurer will render to the Directors whenever they may require it
an account of the operating results and financial condition of the Corporation, and will have such
other powers and perform such other duties as the Board of Directors may from time to time
prescribe or as the Chief Executive Officer or the President may from time to time delegate to him.
Section 14. Assistant Treasurers. The Assistant Treasurers in the order of their seniority in
office, unless otherwise determined by the Board of Directors, will, in the absence or disability
of the Treasurer, exercise the powers and perform the duties of the Treasurer. They will have such
other powers and perform such other duties as the Board of Directors may from time to time
prescribe or as the Chief Executive Officer or the President may from time to time delegate to
them.
Section 15. Bonding. The Corporation may secure a bond to protect the Corporation from loss
in the event of defalcation by any of the officers, which bond may be in such form and amount and
with such surety as the Board of Directors may deem appropriate.
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ARTICLE VII
CERTIFICATES REPRESENTING SHARES
Section 1. Form of Certificates. Certificates, in such form as may be determined by the Board
of Directors, representing shares to which stockholders are entitled will be delivered to each
stockholder, provided that the Board of Directors may provide by resolution or resolutions that
some or all of any of the classes or series of the Corporations 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. Any certificates for shares of stock shall be in
such form as the Board of Directors may from time to time prescribe. Any certificates of stock
shall be signed by the Chief Executive Officer, the President, or a Vice President and the
Secretary or an Assistant Secretary, and may be sealed with the seal of the Corporation or a
facsimile thereof. If any certificate is countersigned by a transfer agent or an assistant
transfer agent or registered by a registrar, either of which is other than the Corporation or an
employee of the Corporation, the signatures of the Corporations officers may be facsimiles. In
case any officer or officers who have signed, or whose facsimile signature or signatures have been
used on such certificate or certificates, ceases to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise, before such certificate or certificates have
been delivered by the Corporation or its agents, such certificate or certificates may nevertheless
be adopted by the Corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature or signatures have been used
thereon had not ceased to be such officer or officers of the Corporation.
Section 2. Lost Certificates. The Board of Directors may direct that a new certificate be
issued in place of any certificate theretofore issued by the Corporation alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate
to be lost or destroyed. When authorizing such issue of a new certificate, the Board of Directors,
in its discretion and as a condition precedent to the issuance thereof, may require the owner of
such lost or destroyed certificate, or his legal representative, to advertise the same in such
manner as it may require and/or to give the Corporation a bond, in such form, in such sum, and with
such surety or sureties as it may direct as indemnity against any claim that may be made against
the Corporation with respect to the certificate alleged to have been lost or destroyed. When a
certificate has been lost, apparently destroyed or wrongfully taken, and the holder of record fails
to notify the Corporation within a reasonable time after such holder has notice of it, and the
Corporation registers a transfer of the shares represented by the certificate before receiving such
notification, the holder of record is precluded from making any claim against the Corporation for
the transfer of a new certificate.
Section 3. Transfer Agent and Registrar. The Board may appoint one or more transfer agents
and one or more registrars, and may require all certificates for shares, if any, to bear the manual
or facsimile signature or signatures of any of them. Any such transfer agent and registrar shall
transfer stock in accordance with its customary transfer procedures and in accordance with
applicable laws, regulations, and these Bylaws.
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Section 4. Denial of Preemptive Rights. No stockholder of the Corporation nor other person
shall have any preemptive rights whatsoever.
ARTICLE VIII
Section 1. Dividends. Dividends upon the outstanding shares of the Corporation, subject to
the provisions of the Certificate of Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting. Dividends may be declared and paid in cash, in
property, or in shares of the Corporation, subject to the provisions of the General Corporation Law
of the State of Delaware (the DGCL), as it may be amended from time to time, and the Certificate
of Incorporation. The Board of Directors may fix in advance a record date for the purpose of
determining stockholders entitled to receive payment of any dividend, such record date to be not
more than sixty days prior to the payment date of such dividend or the Board of Directors may close
the stock transfer books for such purpose for a period of not more than sixty days prior to the
payment date of such dividend. In the absence of any action by the Board of Directors, the date
upon which the Board of Directors adopts the resolution declaring such dividend will be the record
date.
Section 2. Reserves. There may be created by resolution of the Board of Directors out of the
surplus of the Corporation such reserve or reserves as the Directors from time to time, in their
discretion, deem proper to provide for contingencies, or to equalize dividends, or to repair or
maintain any property of the Corporation, or for such other purpose as the Directors may deem
beneficial to the Corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created. Surplus of the Corporation to the extent so reserved will not be
available for the payment of dividends or other distributions by the Corporation.
Section 3. Telephone and Similar Meetings. Stockholders, Directors and committee members may
participate in and hold meetings by means of conference telephone or similar communications
equipment by which all persons participating in the meeting can hear each other. Participation in
such a meeting will constitute presence in person at the meeting, except where a person
participates in the meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the ground that the meeting has not been lawfully called or
convened.
Section 4. Books and Records. The Corporation will keep correct and complete books and
records of account and minutes of the proceedings of its stockholders and Board of Directors, and
will keep at its registered office or principal place of business, or at the office of its transfer
agent or registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
Section 5. Fiscal Year. The fiscal year of the Corporation will be fixed by resolution of
the Board of Directors.
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Section 6. Seal. The Corporation may have a seal, and the seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise. Any officer of the
Corporation will have authority to affix the seal to any document requiring it.
Section 7. Advances of Expenses. Expenses (including attorneys fees) incurred by a
Director or officer in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such Director or officer to
repay such amount if it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article. Such expenses (including attorneys
fees) incurred by former Directors and officers or other employees and agents may be so paid upon
such terms and conditions, if any, as the Corporation deems appropriate.
Section 8. Indemnification. The Corporation will indemnify its Directors to the fullest
extent permitted by the DGCL and may, if and to the extent authorized by the Board of Directors, so
indemnify its officers and any other person whom it has the power to indemnify against liability,
reasonable expense or other matter whatsoever.
Section 9. Employee Benefit Plans. For purposes of this Article, the Corporation shall be
deemed to have requested a Director or officer to serve as a trustee, employee, agent, or similar
functionary of an employee benefit plan whenever the performance by him of his duties to the
Corporation also imposes duties on or otherwise involves services by him to the plan or
participants or beneficiaries of the plan. Excise taxes assessed on a Director or officer with
respect to an employee benefit plan pursuant to applicable law are deemed fines. Action taken or
omitted by a Director or officer with respect to an employee benefit plan in the performance of his
duties for a purpose reasonably believed by him to be in the interest of the participants and
beneficiaries of the plan is deemed to be for a purpose which is not opposed to the best interests
of the Corporation.
Section 10. Insurance. The Corporation may at the discretion of the Board of Directors
purchase and maintain insurance on behalf of the Corporation and any person whom it has the power
to indemnify pursuant to law, the Certificate of Incorporation, these Bylaws or otherwise.
Section 11. Resignation. Any Director, officer or agent may resign by giving written notice
to the Chief Executive Officer, the President, or the Secretary. Such resignation will take effect
at the time specified therein or immediately if no time is specified therein. Unless otherwise
specified therein, the acceptance of such resignation will not be necessary to make it effective.
Section 12. Amendment of Bylaws. These Bylaws may be altered, amended, or repealed at any
meeting of the Board of Directors at which a quorum is present, by the affirmative vote of a
majority of the Directors present at such meeting.
Section 13. Construction. Whenever the context so requires, the masculine shall include the
feminine and neuter, and the singular shall include the plural, and conversely.
If any portion of these Bylaws shall be invalid or inoperative, then, so far as is
reasonable and possible:
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(a)
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The remainder of these Bylaws shall be considered valid and operative, and
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(b)
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Effect shall be given to the intent manifested by the portion held invalid or
inoperative.
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Section 14. Relation to the Certificate of Incorporation. These Bylaws are subject to, and
governed by, the Certificate of Incorporation of the Corporation.
Adopted:
October 30, 2007.
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