AMENDED
AND RESTATED BYLAWS
OF
NEURALSTEM
INC.
(amended
and restated on July 16, 2007)
BYLAWS
OF NEURALSTEM, INC
ARTICLE
I — CORPORATE OFFICES
1.1
REGISTERED
OFFICE.
The
registered office of Neuralstem Inc. shall be as designated in its certificate
of incorporation (“Certificate”) and as may be amended or changed by the
corporation’s board of directors from time to time.
1.2
OTHER
OFFICES.
The
corporation’s Board of Directors (the “
Board
”)
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
2.1
PLACE
OF
MEETINGS.
Meetings
of stockholders shall be held at any place within or outside the State of
Delaware as designated by the Board. The Board may, in its sole discretion,
determine that a meeting of stockholders shall not be held at any place, but
may
instead be held solely by means of remote communication as authorized by Section
211(a)(2) of the Delaware General Corporation Law (the “
DGCL
”).
In
the absence of any such designation or determination, stockholders’ meetings
shall be held at the corporation’s principal executive office.
2.2
ANNUAL
MEETING.
The
annual meeting of stockholders shall be held each year on a date and at a time
designated by the Board. At the annual meeting, directors shall be elected
and
any other proper business may be transacted.
2.3
SPECIAL
MEETING.
Unless
otherwise required by law or the Certificate, special meetings of the
stockholders may be called at any time, for any purpose or purposes, only by
(i)
the Board, (ii) the Chairman of the Board, (iii) the chief executive officer
(or, in the absence of a chief executive officer, the president) of the
corporation, or (iv) holders of more than twenty percent (20%) of the total
voting power of the outstanding shares of capital stock of the corporation
then
entitled to vote.
If
any
person(s) other than the Board calls a special meeting, the request
shall:
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(ii)
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specify the general nature of the business proposed
to be
transacted; and
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(iii)
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be
delivered personally or sent by registered mail or by facsimile
transmission to the secretary of the
corporation.
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Upon
receipt of such a request, the Board shall determine the date, time and place
of
such special meeting, which must be scheduled to be held on a date that is
within ninety (90) days of receipt by the secretary of the request therefor,
and
the secretary of the corporation shall prepare a proper notice thereof. No
business may be transacted at such special meeting other than the business
specified in the notice to stockholders of such meeting.
2.4
NOTICE
OF
STOCKHOLDERS’ MEETINGS.
All
notices of meetings of stockholders shall be sent or otherwise given in
accordance with either Section 2.5 or Section 8.1 of these bylaws not less
than
ten (10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting, except as otherwise required
by
applicable law. The notice shall specify the place, if any, date and hour of
the
meeting, the means of remote communication, if any, by which stockholders and
proxy holders may be deemed to be present in person and vote at such meeting,
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Any previously scheduled meeting of stockholders may be
postponed, and, unless the Certificate provides otherwise, any special meeting
of the stockholders may be cancelled by resolution duly adopted by a majority
of
the Board members then in office upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
Whenever
notice is required to be given, under the DGCL, the Certificate or these bylaws,
to any person with whom communication is unlawful, the giving of such notice
to
such person shall not be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give such notice
to
such person. Any action or meeting which shall be taken or held without notice
to any such person with whom communication is unlawful shall have the same
force
and effect as if such notice had been duly given. In the event that the action
taken by the corporation is such as to require the filing of a certificate
with
the Secretary of State of Delaware, the certificate shall state, if such is
the
fact and if notice is required, that notice was given to all persons entitled
to
receive notice except such persons with whom communication is
unlawful.
Whenever
notice is required to be given, under any provision of the DGCL, the Certificate
or these bylaws, to any stockholder to whom (a) notice of two (2) consecutive
annual meetings, or (b) all, and at least two (2) payments (if sent by
first-class mail) of dividends or interest on securities during a twelve (12)
month period, have been mailed addressed to such person at such person’s address
as shown on the records of the corporation and have been returned undeliverable,
the giving of such notice to such person shall not be required. Any action
or
meeting which shall be taken or held without notice to such person shall have
the same force and effect as if such notice had been duly given. If any such
person shall deliver to the corporation a written notice setting forth such
person’s then current address, the requirement that notice be given to such
person shall be reinstated. In the event that the action taken by the
corporation is such as to require the filing of a certificate with the Secretary
of State of Delaware, the certificate need not state that notice was not given
to persons to whom notice was not required to be given pursuant to Section
230(b) of the DGCL.
The
exception in subsection (a) of the above paragraph to the requirement that
notice be given shall not be applicable to any notice returned as undeliverable
if the notice was given by electronic transmission.
2.5
MANNER
OF
GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice
of
any meeting of stockholders shall be given:
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(i)
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if
mailed, when deposited in the United States mail, postage prepaid,
directed to the stockholder at his or her address as it appears on
the
corporation’s records;
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(ii)
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if
electronically transmitted, as provided in Section 8.1 of these bylaws;
or
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(iii)
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otherwise,
when delivered.
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An
affidavit of the secretary or an assistant secretary of the corporation or
of
the transfer agent or any other 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.
Notice
may be waived in accordance with Section 7.13 of these bylaws.
2.6
QUORUM
Unless
otherwise provided in the Certificate or required by law, stockholders
representing a majority of the voting power of the issued and outstanding
capital stock of the corporation, present in person or represented by proxy,
shall constitute a quorum for the transaction of business at all meetings of
the
stockholders. If such quorum is not present or represented at any meeting of
the
stockholders, then the chairman of the meeting, or the stockholders representing
a majority of the voting power of the capital stock at the meeting, present
in
person or represented by proxy, shall have power to adjourn the meeting from
time to time 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. The
stockholders present at a duly called meeting at which quorum is present may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
2.7
ADJOURNED
MEETING; NOTICE
When
a
meeting is adjourned to another time or place, unless these bylaws otherwise
require, notice need not be given of the adjourned meeting if the time, place
if
any thereof, and the means of remote communications if any by which stockholders
and proxy holders may be deemed to be present in person and vote at such
adjourned meeting are announced at the meeting at which the adjournment is
taken. At the continuation of the adjourned meeting, the corporation may
transact any business that might have been transacted at the original meeting.
If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice
of
the adjourned meeting shall be given to each stockholder of record entitled
to
vote at the meeting in accordance with the provisions of Section 2.4 and 2.5
of
these bylaws.
2.8
ADMINISTRATION
OF THE MEETING
Meetings
of stockholders shall be presided over by the chairman of the Board or, in
the
absence thereof, by such person as the chairman of the Board shall appoint,
or,
in the absence thereof or in the event that the chairman shall fail to make
such
appointment, any officer of the corporation elected by the Board. In the absence
of the secretary of the corporation, the secretary of the meeting shall be
such
person as the chairman of the meeting appoints.
The
Board
shall, in advance of any meeting of stockholders, appoint one (1) or more
inspector(s), who may include individual(s) who serve the corporation in other
capacities, including without limitation as officers, employees or agents,
to
act at the meeting of stockholders and make a written report thereof. The Board
may designate one (1) or more persons as alternate inspector(s) to replace
any
inspector, who fails to act. If no inspector or alternate has been appointed
or
is able to act at a meeting of stockholders, the chairman of the meeting shall
appoint one (1) or more inspector(s) to act at the meeting. Each inspector,
before discharging his or her duties, shall take and sign an oath to faithfully
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspector(s) or alternate(s) shall have the
duties prescribed pursuant to Section 231 of the DGCL or other applicable
law.
The
Board
shall be entitled to make such rules or regulations for the conduct of meetings
of stockholders as it shall deem necessary, appropriate or convenient. Subject
to such rules and regulations, if any, the chairman of the meeting shall have
the right and authority to prescribe such rules, regulations and procedures
and
to do all acts as, in the judgment of such chairman, are necessary, appropriate
or convenient for the proper conduct of the meeting, including without
limitation establishing an agenda of business of the meeting, rules or
regulations to maintain order, restrictions on entry to the meeting after the
time fixed for commencement thereof and the fixing of the date and time of
the
opening and closing of the polls for each matter upon which the stockholders
will vote at a meeting (and shall announce such at the meeting).
2.9
VOTING.
The
stockholders entitled to vote at any meeting of stockholders shall be determined
in accordance with the provisions of Section 2.11 of these bylaws, subject
to
Section 217 (relating to voting rights of fiduciaries, pledgors and joint owners
of stock) and Section 218 (relating to voting trusts and other voting
agreements) of the DGCL.
Except
as
otherwise provided in the provisions of Section 213 of the DGCL (relating to
the
fixing of a date for determination of stockholders of record) or these bylaws,
each stockholder shall be entitled to that number of votes for each share of
capital stock held by such stockholder as set forth in the
Certificate.
In
all
matters, other than the election of directors and except as otherwise required
by law, the Certificate or these bylaws, the affirmative vote of a majority
of
the voting power of the shares present or represented by proxy at the meeting
and entitled to vote on the subject matter shall be the act of the stockholders.
Directors shall be elected by a plurality of the voting power of the shares
present in person or represented by proxy at the meeting and entitled to vote
on
the election of directors.
The
stockholders of the corporation shall not have the right to cumulate their
votes
for the election of directors of the corporation.
2.10
STOCKHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Unless
otherwise restricted by the certificate of incorporation, any action required
or
permitted to be taken at any annual or special meeting of the stockholders
may
be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at
a
meeting at which all shares entitled to vote thereon were present and voted
and
shall be delivered to the corporation by delivery to its registered office,
its
principal place of business, or an officer or agent of the corporation having
custody of the book in which minutes of proceedings of stockholders are
recorded. Delivery made to the corporation's registered office shall be by
hand
or by certified or registered mail, return receipt requested. Prompt notice
of
the taking of the corporate action without a meeting by less than unanimous
written consent shall, to the extent required by law, be given to those
stockholders who have not consented in writing and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed
by a
sufficient number of holders to take the action were delivered to the
corporation.
2.11
RECORD
DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS.
If
the
Board does not fix a record date in accordance with these bylaws and applicable
law:
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(i)
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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.
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(ii)
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The
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the
Board is
necessary, shall be the first day on which a signed written consent
setting forth the action taken or proposed to be taken is delivered
to the
corporation.
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(iii)
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The
record date for determining stockholders for any other purpose shall
be at
the close of business on the day on which the Board adopts the resolution
relating thereto.
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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 may fix a new record date for the adjourned
meeting.
2.12
PROXIES.
Each
stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for such stockholder by proxy authorized by an
instrument in writing or by a transmission permitted by law and filed with
the
secretary of the corporation, but no such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer
period. A stockholder may also authorize another person or persons to act for
him, her or it as proxy in the manner(s) provided under Section 212(c) of the
DGCL or as otherwise provided under Delaware law. The revocability of a proxy
that states on its face that it is irrevocable shall be governed by the
provisions of Section 212 of the DGCL.
2.13
LIST
OF
STOCKHOLDERS ENTITLED TO VOTE.
The
officer who has charge of the stock ledger of the corporation shall prepare
and
make, at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. The corporation shall
not
be required to include electronic mail addresses or other electronic contact
information on such list. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting for a period of at least
ten
(10) days prior to the meeting: (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list
is
provided with the notice of the meeting, or (ii) during ordinary business hours,
at the corporation’s principal place of business.
In
the
event that the corporation determines to make the list available on an
electronic network, the corporation may take reasonable steps to ensure that
such information is available only to stockholders of the corporation. If the
meeting is to be held at a place, then the list shall be produced and kept
at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. If the meeting is to be held solely
by means of remote communication, then the list shall also be open to the
examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of the meeting.
2.14
ADVANCE
NOTICE OF STOCKHOLDER BUSINESS
Only
such
business shall be conducted as shall have been properly brought before a meeting
of the stockholders of the corporation. To be properly brought before an annual
meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board, (b) otherwise
properly brought before the meeting by or at the direction of the Board, or
(c)
a proper matter for stockholder action under the DGCL that has been properly
brought before the meeting by a stockholder (i) who is a stockholder of record
on the date of the giving of the notice provided for in this Section 2.14 and
on
the record date for the determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the notice procedures set forth in
this Section 2.14. For such business to be considered properly brought before
the meeting by a stockholder such stockholder must, in addition to any other
applicable requirements, have given timely notice in proper form of such
stockholder’s intent to bring such business before such meeting. To be timely,
such stockholder’s notice must be delivered to or mailed and received by the
secretary of the corporation at the principal executive offices of the
corporation not later than the close of business on the 90
th
day, nor
earlier than the close of business on the 120
th
day,
prior to the anniversary date of the immediately preceding annual meeting;
provided, however, that in the event that no annual meeting was held in the
previous year or the annual meeting is called for a date that is not within
thirty (30) days before or after such anniversary date, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth (10
th
) day
following the day on which such notice of the date of the meeting was mailed
or
public disclosure of the date of the meeting was made, whichever occurs
first.
To
be in
proper form, a stockholder’s notice to the secretary shall be in writing and
shall set forth:
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(i)
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the
name and record address of the stockholder who intends to propose
the
business and the class or series and number of shares of capital
stock of
the corporation which are owned beneficially or of record by such
stockholder;
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(ii)
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a
representation that the stockholder is a holder of record of stock
of the
corporation entitled to vote at such meeting and intends to appear
in
person or by proxy at the meeting to introduce the business specified
in
the notice;
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(iii)
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a
brief description of the business desired to be brought before the
annual
meeting and the reasons for conducting such business at the annual
meeting;
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(iv)
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any
material interest of the stockholder in such business;
and
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(v)
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any
other information that is required to be provided by the stockholder
pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as
amended (the “
Exchange Act
”).
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Notwithstanding
the foregoing, in order to include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a stockholder’s meeting,
stockholders must provide notice as required by, and otherwise comply with
the
requirements of, the Exchange Act and the regulations promulgated
thereunder.
2.15
ADVANCE
NOTICE OF DIRECTOR NOMINATIONS
Only
persons who are nominated in accordance with the following procedures shall
be
eligible for election as directors of the corporation, except as may be
otherwise provided in the Certificate with respect to the right of holders
of
Preferred Stock of the corporation to nominate and elect a specified number
of
directors. To be properly brought before an annual meeting of stockholders,
or
any special meeting of stockholders called for the purpose of electing
directors, nominations for the election of director must be (a) specified in
the
notice of meeting (or any supplement thereto), (b) made by or at the direction
of the Board (or any duly authorized committee thereof) or (c) made by any
stockholder of the corporation (i) who is a stockholder of record on the date
of
the giving of the notice provided for in this Section 2.15 and on the record
date for the determination of stockholders entitled to vote at such meeting
and
(ii) who complies with the notice procedures set forth in this Section
2.15.
In
addition to any other applicable requirements, for a nomination to be made
by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the secretary of the corporation. To be timely, a stockholder’s
notice to the secretary must be delivered to or mailed and received at the
principal executive offices of the corporation, in the case of an annual
meeting, in accordance with the provisions set forth in Section 2.14, and,
in
the case of a special meeting of stockholders called for the purpose of electing
directors, not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the special meeting was mailed
or public disclosure of the date of the special meeting was made, whichever
first occurs.
To
be in
proper written form, a stockholder’s notice to the secretary must set
forth:
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(a)
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as
to each person whom the stockholder proposes to nominate for election
as a
director (i) the name, age, business address and residence address
of the
person, (ii) the principal occupation or employment of the person,
(iii)
the class or series and number of shares of capital stock of the
corporation which are owned beneficially or of record by the person,
(iv)
a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming
such
person or persons) pursuant to which the nominations are to be made
by the
stockholder, and (v) any other information relating to such person
that is
required to be disclosed in solicitations of proxies for elections
of
directors, or is otherwise required, in each case pursuant to Regulation
14A under the Exchange Act (including without limitation such person’s
written consent to being named in the proxy statement, if any, as
a
nominee and to serving as a director if elected);
and
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(b)
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as
to such stockholder giving notice, the information required to be
provided
pursuant to Section 2.14.
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Subject
to the rights of any holders of Preferred Stock of the corporation, no person
shall be eligible for election as a director of the corporation unless nominated
in accordance with the procedures set forth in this Section 2.15. If the
chairman of the meeting properly determines that a nomination was not made
in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall
be
disregarded.
ARTICLE
III — DIRECTORS
3.1
POWERS.
Subject
to the provisions of the DGCL and any limitations in the Certificate, 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.
3.2
NUMBER
OF
DIRECTORS.
Subject
to the rights of the holders of any series of Preferred Stock to elect directors
under specified circumstances, the authorized number of directors shall be
determined from time to time by resolution of the Board, provided the Board
shall consist of at least three (3) members. No reduction of the authorized
number of directors shall have the effect of removing any director before that
director’s term of office expires.
3.3
ELECTION,
QUALIFICATION AND TERM OF OFFICE OF DIRECTORS.
Except
as
provided in Section 3.4 and Section 3.13 of these bylaws, directors shall be
elected at each annual meeting of stockholders to hold office until the next
annual meeting. Directors need not be stockholders unless so required by the
Certificate or these bylaws. The Certificate or these bylaws may prescribe
other
qualifications for directors. Each director, including a director elected to
fill a vacancy, shall hold office until such director’s successor is elected and
qualified or until such director’s earlier death, resignation or
removal.
Commence
at the 2008 annual meeting, the Directors of the Corporation, subject to the
rights of the holders of shares of any class or series of preferred stock,
shall
be classified with respect to the time for which they severally hold office,
into three (3) classes, as nearly equal in number as possible, one class (“Class
I”) whose initial term expires at the 2009 annual meeting of stockholders,
another class (“Class II”) whose initial term expires at the 2010 annual meeting
of stockholders, and another class (“Class Ill”) whose initial term expires at
the 2011 annual meeting of stockholders, with each class to hold office until
its successors are elected and qualified. Except as otherwise provided in
Sections 3.4 and 3.13 of these By-Laws, at each annual meeting of stockholders
of the Corporation, and subject to the rights of the holders of shares of any
class or series of preferred stock, the successors of the class of Directors
whose term expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election.
All
elections of directors shall be by written ballot or by written consent of
the
shareholders as provided for in Section 2.10 of these By-Laws, unless otherwise
provided in the Certificate. If authorized by the Board, such requirement of
a
written ballot shall be satisfied by a ballot submitted by electronic
transmission, provided that any such electronic transmission must be either
set
forth or be submitted with information from which it can be determined that
the
electronic transmission was authorized.
3.4
RESIGNATION
AND VACANCIES.
Any
director may resign at any time upon written notice or by electronic
transmission to the corporation.
Subject
to the rights of the holders of any series of Preferred Stock of the corporation
then outstanding and unless the Board otherwise determines, newly created
directorships resulting from any increase in the authorized number of directors,
or any vacancies on the Board resulting from the death, resignation, retirement,
disqualification, removal from office or other cause shall, unless otherwise
required by law, be filled by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board,
or by a sole remaining director. When one or more directors resigns 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 power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation
or
resignations shall become effective, and each director so chosen shall hold
office as provided in this Section 3.4 in the filling of other
vacancies.
3.5
PLACE
OF
MEETINGS; MEETINGS BY TELEPHONE.
The
Board
may hold meetings, both regular and special, either within or outside the State
of Delaware.
3.6
REGULAR
MEETINGS.
Regular
meetings of the Board may be held with at least five business days prior notice
at such time and at such place as shall from time to time be determined by
the
Board.
3.7
SPECIAL
MEETINGS; NOTICE.
Special
meetings of the Board for any purpose or purposes may be called at any time
by
the chairman of the Board, the chief executive officer, a president, the
secretary or any two directors. The person(s) authorized to call special
meetings of the Board may fix the place and time of the meeting.
Notice
of
the time and place of special meetings shall be:
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(i)
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delivered
personally by hand, by courier or by
telephone;
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(ii)
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sent
by United States first-class mail, postage
prepaid;
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(iii)
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sent
by facsimile; or
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(iv)
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sent
by electronic mail,
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directed
to each director at that director’s address, telephone number, facsimile number
or electronic mail address, as the case may be, as shown on the corporation’s
records.
If
the
notice is (i) delivered personally by hand, by courier or by telephone, (ii)
sent by facsimile or (iii) sent by electronic mail, it shall be delivered or
sent at least twenty-four (24) hours before the time of the holding of the
meeting. If the notice is sent by United States mail, it shall be deposited
in
the United States mail at least four days before the time of the holding of
the
meeting. Any oral notice may be communicated either to the director or to a
person at the office of the director who the person giving notice has reason
to
believe will promptly communicate such notice to the director. The notice need
not specify the place of the meeting if the meeting is to be held at the
corporation’s principal executive office nor the purpose of the
meeting.
3.8
QUORUM.
Except
as
otherwise required by law or the Certificate, at all meetings of the Board,
a
majority of the authorized number of directors (as determined pursuant to
Section 3.2 of these bylaws) shall constitute a quorum for the transaction
of
business, except to adjourn as provided in Section 3.11 of these bylaws. The
vote of a majority of the directors present at any meeting at which a quorum
is
present shall be the act of the Board, except as may be otherwise specifically
provided by statute, the Certificate or these bylaws.
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 directors present at that meeting.
Whenever
notice is required to be given under any provisions of the DGCL, the Certificate
or these bylaws, a written waiver thereof, signed by the person entitled to
notice, or a waiver by electronic transmission 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 solely 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 or any waiver by electronic transmission unless
so
required by the Certificate or these bylaws.
3.10
BOARD
ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Unless
otherwise restricted by the Certificate or these bylaws, any action required
or
permitted to be taken at any meeting of the Board, or of any committee thereof,
may be taken without a meeting if all members of the Board or committee, as
the
case may be, consent thereto in writing or by electronic transmission and the
writing or writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board or committee. Such filing shall be
in
paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
3.11
ADJOURNED
MEETING; NOTICE.
If
a
quorum is not present at any meeting of the Board, then a majority of 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.
3.12
FEES
AND
COMPENSATION OF DIRECTORS.
Unless
otherwise restricted by the Certificate or these bylaws, the Board shall have
the authority to fix the compensation of directors.
3.13
REMOVAL
OF DIRECTORS.
Subject
to the rights of the holders of any series of Preferred Stock then outstanding,
any director or the entire Board may be removed from office at any time, with
or
without cause, by the affirmative vote of the holders of at least a majority
of
the voting power of the issued and outstanding shares of capital stock of the
corporation then entitled to vote in the election of directors.
3.14
CORPORATE
GOVERNANCE COMPLIANCE.
Without
otherwise limiting the powers of the Board set forth in Section 3.1 and provided
that shares of capital stock of the corporation are listed for trading on either
The American Stock Exchange (“
AMEX
”),
The
Nasdaq National Market (“
NASDAQ
”)
or the
New York Stock Exchange (“
NYSE
”),
the
corporation shall comply with the corporate governance rules and requirements
of
the AMEX, NASDAQ or the NYSE, as applicable.
ARTICLE
IV — COMMITTEES
4.1
COMMITTEES
OF DIRECTORS.
The
Board
may designate one or more committees, each committee to consist of one or more
of the directors of the corporation. The Board 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 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 or in these bylaws, shall have and may exercise such lawfully delegable
powers and duties as the Board may confer. Each committee will comply with
all
applicable provisions of: the Sarbanes-Oxley Act of 2002, the rules and
regulations of the Securities and Exchange Commission, and the rules and
requirements of AMEX, NASDAQ or NYSE, as applicable, and will have the right
to
retain independent legal counsel and other advisers at the corporation’s
expense.
4.2
COMMITTEE
MINUTES.
Each
committee shall keep regular minutes of its meetings and report to the Board
when required.
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:
|
|
(i)
|
Section
3.5 (place of meetings and meetings by
telephone);
|
|
|
(ii)
|
Section
3.6 (regular meetings);
|
|
|
(iii)
|
Section
3.7 (special meetings and notice);
|
|
|
(iv)
|
Section
3.8 (quorum);
|
|
|
(v)
|
Section
3.9 (waiver of notice);
|
|
|
(vi)
|
Section
3.10 (action without a meeting);
and
|
|
|
(vii)
|
Section
3.11 (adjournment and notice of
adjournment).
|
with
such
changes in the context of those bylaws as are necessary to substitute the
committee and its members for the Board and its members.
Notwithstanding
the foregoing:
|
|
(i)
|
the
time of regular meetings of committees may be determined either by
resolution of the Board or by resolution of the
committee;
|
|
|
(ii)
|
special
meetings of committees may also be called by resolution of the Board;
and
|
|
|
(iii)
|
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 may adopt rules for the government of any committee not
inconsistent with the provisions of these
bylaws.
|
4.4
AUDIT
COMMITTEE
The
Board
shall establish an Audit Committee whose principal purpose will be to oversee
the corporation’s and its subsidiaries’ accounting and financial reporting
processes, internal systems of control, independent auditor relationships and
audits of consolidated financial statements of the corporation and its
subsidiaries. The Audit Committee will also determine the appointment of the
independent auditors of the corporation and any change in such appointment
and
ensure the independence of the corporation’s auditors. In addition, the Audit
Committee will assume such other duties and responsibilities as the Board may
confer upon the committee from time to time. In the event of any inconsistency
between this Section 4.4 and the Certificate, the terms of the Certificate
will
govern.
4.5
CORPORATE
GOVERNANCE AND NOMINATING COMMITTEE
The
Board
shall establish a Corporate Governance and Nominating Committee whose principal
duties will be to assist the Board by identifying individuals qualified to
become Board members consistent with criteria approved by the Board, to
recommend to the Board for its approval the slate of nominees to be proposed
by
the Board to the stockholders for election to the Board, to develop and
recommend to the Board the governance principles applicable to the corporation,
as well as such other duties and responsibilities as the Board may confer upon
the committee from time to time. In the event the Corporate Governance and
Nominating Committee will not be recommending a then incumbent director for
inclusion in the slate of nominees to be proposed by the Board to the
stockholders for election to the Board, and provided such incumbent director
has
not notified the Committee that he or she will be resigning or that he or she
does not intend to stand for re-election to the Board, then, in the case of
an
election to be held at an annual meeting of stockholders, the Committee will
recommend the slate of nominees to the Board at least thirty (30) days prior
to
the latest date required by the provisions of Sections 2.14 and 2.15 of these
bylaws for stockholders to submit nominations for directors at such annual
meeting, or in the case of an election to be held at a special meeting of
stockholders, at least ten (10) days prior to the latest date required by the
provisions of Sections 2.14 and 2.15 of these bylaws for stockholders to submit
nominations for directors at such special meeting. In the event of any
inconsistency between this Section 4.5 and the Certificate, the terms of the
Certificate will govern.
4.6
COMPENSATION
COMMITTEE
The
Board
shall establish a Compensation Committee whose principal duties will be to
review employee compensation policies and programs as well as the compensation
of the chief executive officer and other executive officers of the corporation,
to recommend to the Board a compensation program for outside Board members,
as
well as such other duties and responsibilities as the Board may confer upon
the
committee from time to time. In the event of any inconsistency between this
Section 4.6 and the Certificate, the terms of the Certificate will
govern.
ARTICLE
V — OFFICERS
5.1
OFFICERS
The
officers of the corporation shall be a chief executive officer, one or more
presidents (at the discretion of the Board), a chairman of the Board and a
secretary. The corporation may also have, at the discretion of the Board, a
vice
chairman of the Board, a chief financial officer, a treasurer, one or more
vice
presidents, one or more assistant vice presidents, one or more assistant
treasurers, one or more assistant secretaries, and any such other officers
as
may be appointed in accordance with the provisions of these bylaws.
Any
number of offices may be held by the same person, provided, however, that,
except as provided in Section 5.6 below, the chairman of the Board shall not
hold any other office of the corporation.
5.2
APPOINTMENT
OF OFFICERS
The
Board
shall appoint the officers of the corporation, except such officers as may
be
appointed in accordance with the provisions of Sections 5.3 of these bylaws,
subject to the rights, if any, of an officer under any contract of employment.
Each officer shall hold office until his or her successor is elected and
qualified or until his or her earlier resignation or removal. A failure to
elect
officers shall not dissolve or otherwise affect the corporation.
5.3
SUBORDINATE
OFFICERS
The
Board
may appoint, or empower the chief executive officer and/or one or more
presidents of the corporation, to appoint, such other officers and agents as
the
business of the corporation may require. Each of such officers and agents shall
hold office for such period, have such authority, and perform such duties as
are
provided in these bylaws or as the Board may from time to time
determine.
5.4
REMOVAL
AND RESIGNATION OF OFFICERS.
Any
officer may be removed, either with or without cause, by an affirmative vote
of
the majority of the Board at any regular or special meeting of the Board or,
except in the case of an officer appointed by the Board, by any officer upon
whom such power of removal may be conferred by the Board.
Any
officer may resign at any time by giving written notice to 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. Unless otherwise specified in the
notice of resignation, 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.
5.5
VACANCIES
IN OFFICES.
Any
vacancy occurring in any office of the corporation shall be filled by the Board
or as provided in Section 5.2.
The
Chairman of the Board shall be chosen from among the Directors. The Chairman
of
the Board shall have the power to call special meetings of the stockholders
and
of the Directors for any purpose or purposes, and he shall preside at all
meetings of the Board of Directors, unless he shall be absent or unless he
shall, at his election, designate the Vice Chairman, if one is elected, to
preside in his stead. The Chairman of the Board shall advise and counsel the
Chief Executive Officer and other officers of the Corporation and shall exercise
such powers and perform such duties as shall be assigned to or required by
him
from time to time by the Board of Directors.
5.7
CHIEF
EXECUTIVE OFFICER.
Subject
to the control of the Board and any supervisory powers the Board may give to
the
chairman of the Board, the chief executive officer shall, together with the
president or presidents of the corporation, have general supervision, direction,
and control of the business and affairs of the corporation and shall see that
all orders and resolutions of the Board are carried into effect. The chief
executive officer shall, together with the president or presidents of the
corporation, also perform all duties incidental to this office that may be
required by law and all such other duties as are properly required of this
office by the Board of Directors. The chief executive officer shall serve as
chairman of and preside at all meetings of the stockholders. In the absence
of
the chairman of the Board, the chief executive officer shall preside at all
meetings of the Board.
5.8
PRESIDENTS.
Subject
to the control of the Board and any supervisory powers the Board may give to
the
chairman of the Board, the president or presidents of the corporation shall,
together with the chief executive officer, have general supervision, direction,
and control of the business and affairs of the corporation and shall see that
all orders and resolutions of the Board are carried into effect. A president
shall have such other powers and perform such other duties as from time to
time
may be prescribed for him or her by the Board, these bylaws, or the chairman
of
the Board.
5.9
VICE
PRESIDENTS.
In
the
absence or disability of any president, the vice presidents, if any, in order
of
their rank as fixed by the Board or, if not ranked, a vice president designated
by the Board, shall perform all the duties of a president. When acting as a
president, the appropriate vice president shall have all the powers of, and
be
subject to all the restrictions upon, that 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, these bylaws, the chairman of
the
Board, the chief executive officer or, in the absence of a chief executive
officer, one of more of the presidents.
5.10
SECRETARY.
The
secretary shall keep or cause to be kept, at the principal executive office
of
the corporation or such other place as the Board may direct, a book of minutes
of all meetings and actions of directors, committees of directors, and
stockholders. The minutes shall show:
|
|
(i)
|
the
time and place of each meeting;
|
|
|
(ii)
|
whether regular or special (and, if special, how
authorized and the notice given);
|
|
|
(iii)
|
the names of those present at directors’ meetings or
committee meetings;
|
|
|
(iv)
|
the number of shares present or represented at
stockholders’ meetings; and
|
|
|
(v)
|
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, a share register, or a
duplicate share register showing:
|
|
(i)
|
the
names of all stockholders and their
addresses;
|
|
|
(ii)
|
the number and classes of shares held by
each;
|
|
|
(iii)
|
the number and date of certificates evidencing
such
shares; and
|
|
|
(iv)
|
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 required to be given by law or by these bylaws.
The secretary shall keep the seal of the corporation, if one be adopted, in
safe
custody and shall have such other powers and perform such other duties as may
be
prescribed by the Board or by these bylaws.
5.11
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 the Board may
designate. The chief financial officer shall disburse the funds of the
corporation as may be ordered by the Board, shall render to the chief executive
officer or, in the absence of a chief executive officer, any president and
directors, whenever they request it, 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 or these bylaws.
The
chief
financial officer may be the treasurer of the corporation.
The
treasurer 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
treasurer shall deposit all moneys and other valuables in the name and to the
credit of the corporation with such depositories as the Board may designate.
The
treasurer shall disburse the funds of the corporation as may be ordered by
the
Board, shall render to the chief executive officer or, in the absence of a
chief
executive officer, one or more of the presidents and directors, whenever they
request it, an account of all his or her transactions as treasurer 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 or these
bylaws.
5.13
ASSISTANT
SECRETARY.
The
assistant secretary, or, if there is more than one, the assistant secretaries
in
the order determined by the Board (or if there be no such determination, then
in
the order of their election) shall, in the absence of the secretary or in the
event of the secretary’s inability or refusal to act, perform the duties and
exercise the powers of the secretary and shall perform such other duties and
have such other powers as may be prescribed by the Board or these
bylaws.
5.14
ASSISTANT
TREASURER.
The
assistant treasurer, or, if there is more than one, the assistant treasurers,
in
the order determined by the Board (or if there be no such determination, then
in
the order of their election), shall, in the absence of the chief financial
officer or treasurer or in the event of the chief financial officer’s or
treasurer’s inability or refusal to act, perform the duties and exercise the
powers of the chief financial officer or treasurer, as applicable, and shall
perform such other duties and have such other powers as may be prescribed by
the
Board or these bylaws.
5.15
REPRESENTATION
OF SHARES OF OTHER CORPORATIONS.
The
chairman of the Board, the chief executive officer, any president, any vice
president, the treasurer, the secretary or assistant secretary of this
corporation, or any other person authorized by the Board, the chief executive
officer, a 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
or other equity interests of any other corporation or entity 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 such person having the
authority.
5.16
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.
ARTICLE
VI — RECORDS AND REPORTS
6.1
MAINTENANCE
AND INSPECTION OF RECORDS.
The
corporation shall, either at its principal executive office or at such place
or
places as designated by the Board, 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 may be amended to date, minute books,
accounting books and other records.
Any
such
records maintained by the corporation may be kept on, or by means of, or be
in
the form of, any information storage device or method, provided that the records
so kept can be converted into clearly legible paper form within a reasonable
time. The corporation shall so convert any records so kept upon the request
of
any person entitled to inspect such records pursuant to the provisions of the
DGCL. When records are kept in such manner, a clearly legible paper form
produced from or by means of the information storage device or method shall
be
admissible in evidence, and accepted for all other purposes, to the same extent
as an original paper form accurately portrays the record.
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 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 executive
office.
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.
ARTICLE
VII — GENERAL MATTERS
7.1
CHECKS;
DRAFTS; EVIDENCES OF INDEBTEDNESS.
From
time
to time, the Board shall 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.
7.2
EXECUTION
OF CORPORATE CONTRACTS AND INSTRUMENTS.
Except
as
otherwise provided in these bylaws, the Board, or any officers of the
corporation authorized thereby, 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.
7.3
STOCK
CERTIFICATES; PARTLY PAID SHARES.
The
shares of the corporation shall be represented by certificates, provided that
the Board 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, 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, or a president or vice-president,
and by the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of such 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 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, and 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.
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, designations, preferences, and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights 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 DGCL, 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, designations, preferences, and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
7.5
LOST
CERTIFICATES.
Except
as
provided in this Section 7.6, no new certificates for shares shall be issued
to
replace a previously issued certificate unless the latter is surrendered to
the
corporation and cancelled at the same time. The corporation may issue a new
certificate of stock or uncertificated shares in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the corporation may require the owner of the lost, stolen or destroyed
certificate, or such 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.
Unless
the context requires otherwise, the general provisions, rules of construction,
and definitions in the DGCL 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.
7.7
DIVIDENDS.
The
Board, subject to any restrictions contained in either (i) the DGCL, or (ii)
the
Certificate, 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
Board
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
reserve.
7.8
FISCAL
YEAR.
The
fiscal year of the corporation shall be fixed by resolution of the Board and
may
be changed by the Board.
7.9
SEAL.
The
corporation may adopt a corporate seal, which shall be adopted and which may
be
altered by the Board. The corporation may use the corporate seal by causing
it
or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
7.10
TRANSFER
OF STOCK.
Transfers
of stock shall be made only upon the transfer books of the corporation kept
at
an office of the corporation or by transfer agents designated to transfer shares
of the stock of the corporation. Except where a certificate is issued in
accordance with Section 7.5 of these bylaws, an outstanding certificate for
the
number of shares involved shall be surrendered for cancellation before a new
certificate is issued therefore. 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.
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 or series of stock of the
corporation to restrict the transfer of shares of stock of the corporation
of
any one or more classes or series owned by such stockholders in any manner
not
prohibited by the DGCL.
7.12
REGISTERED
STOCKHOLDERS.
The
corporation:
|
|
(i)
|
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;
|
|
|
(ii)
|
shall
be entitled to hold liable for calls and assessments on partly paid
shares
the person registered on its books as the owner of shares;
and
|
|
|
(iii)
|
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.
|
7.13
WAIVER
OF
NOTICE.
Whenever
notice is required to be given under any provision of the DGCL, the Certificate
or these bylaws, a written waiver, signed by the person entitled to notice,
or a
waiver by electronic transmission by the person entitled to notice, whether
before or after the time of the event for which notice is to be given, 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 solely 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 or any waiver by electronic transmission unless so
required by the Certificate or these bylaws.
7.14
CHARITABLE
FOUNDATION.
The
establishment by the corporation of a charitable foundation will require Board
approval, as will contributions by the corporation to the foundation and
disbursements by the foundation. The Board may delegate authority over the
foundation to one or more persons who are not directors of the corporation
with
the approval of two-thirds of the members of the Board.
ARTICLE
VIII — NOTICE BY ELECTRONIC TRANSMISSION
8.1
NOTICE
BY
ELECTRONIC TRANSMISSION.
Without
limiting the manner by which notice otherwise may be given effectively to
stockholders pursuant to the DGCL, the Certificate or these bylaws, any notice
to stockholders given by the corporation under any provision of the DGCL, the
Certificate or these bylaws shall be effective if given by a form of electronic
transmission consented to by the stockholder to whom the notice is given. Any
such consent shall be revocable by the stockholder by written notice to the
corporation. Any such consent shall be deemed revoked if:
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(i)
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the
corporation is unable to deliver by electronic transmission two
consecutive notices given by the corporation in accordance with such
consent; and
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(ii)
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such
inability becomes known to the secretary or an assistant secretary
of the
corporation or to the transfer agent, or other person responsible
for the
giving of notice.
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However,
the inadvertent failure to treat such inability as a revocation shall not
invalidate any meeting or other action.
Any
notice given pursuant to the preceding paragraph shall be deemed
given:
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(i)
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if
by facsimile telecommunication, when directed to a number at which
the
stockholder has consented to receive
notice;
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(ii)
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if
by electronic mail, when directed to an electronic mail address at
which
the stockholder has consented to receive
notice;
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(iii)
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if
by a posting on an electronic network together with separate notice
to the
stockholder of such specific posting, upon the later of (A) such
posting
and (B) the giving of such separate notice;
and
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(iv)
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if
by any other form of electronic transmission, when directed to the
stockholder.
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An
affidavit of the secretary or an assistant secretary or of the transfer agent
or
other agent of the corporation that the notice has been given by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
8.2
DEFINITION
OF ELECTRONIC TRANSMISSION.
An
“electronic transmission” means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may
be
retained, retrieved, and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an automated
process.
8.3
INAPPLICABILITY.
Notice
by
a form of electronic transmission shall not apply to Section 164 (failure to
pay
for stock; remedies), Section 296 (adjudication of claims; appeal), Section
311
(revocation of voluntary dissolution), Section 312 (renewal, revival, extension
and restoration of certificate of incorporation) or Section 324 (attachment
of
shares of stock) of the DGCL.
ARTICLE
IX — INDEMNIFICATION OF DIRECTORS AND OFFICERS
9.1
POWER
TO
INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN THE RIGHT
OF THE CORPORATION.
Subject
to Section 9.3 of this Article IX, the corporation shall indemnify, to the
fullest extent permitted by the DGCL, as now or hereafter in effect, any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the
corporation) by reason of the fact that such person (or the legal representative
of such person) is or was a director or officer of the corporation or any
predecessor of the corporation, or is or was a director or officer of the
corporation serving at the request of the corporation as a director or officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person’s conduct was unlawful. The termination
of any action, suit or proceeding by judgment,
order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that such
person’s conduct was unlawful.
9.2
POWER
TO
INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION
Subject
to Section 9.3 of this Article IX, the corporation shall indemnify, to the
fullest extent permitted by the DGCL, as now or hereafter in effect, any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person (or
the
legal representative of such person) is or was a director or officer of the
corporation or any predecessor of the corporation, or is or was a director
or
officer of the corporation serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys’ fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in
or
not opposed to the best interests of the corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
9.3
AUTHORIZATION
OF INDEMNIFICATION
Any
indemnification under this Article IX (unless ordered by a court) shall be
made
by the corporation only as authorized in the specific case upon a determination
that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct set forth in
Section 9.1 or Section 9.2 of this Article IX, as the case may be. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) by a committee of such directors designated by
a
majority vote of such directors, even though less than a quorum, or (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion or (iv) by the stockholders (but only if
a
majority of the directors who are not parties to such action, suit or
proceeding, if they constitute a quorum of the board of directors, presents
the
issue of entitlement to indemnification to the stockholders for their
determination). Such determination shall be made, with respect to former
directors and officers, by any person or persons having the authority to act
on
the matter on behalf of the corporation. To the extent, however, that a present
or former director or officer of the corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, such person shall
be
indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection therewith, without the necessity of
authorization in the specific case.
9.4
GOOD
FAITH DEFINED
For
purposes of any determination under Section 9.3 of this Article IX, to the
fullest extent permitted by applicable law, a person shall be deemed to have
acted in good faith and in a manner such person reasonably
believed
to be in or not opposed to the best interests of the corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause
to
believe such person’s conduct was unlawful, if such person’s action is based on
the records or books of account of the corporation or another enterprise, or
on
information supplied to such person by the officers of the corporation or
another enterprise in the course of their duties, or on the advice of legal
counsel for the corporation or another enterprise or on information or records
given or reports made to the corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the corporation or another enterprise. The term “another
enterprise” as used in this Section 9.4 shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise
of
which such person is or was serving at the request of the corporation as a
director, officer, employee or agent. The provisions of this Section 9.4 shall
not be deemed to be exclusive or to limit in any way the circumstances in which
a person may be deemed to have met the applicable standard of conduct set forth
in Section 9.1 or 9.2 of this Article IX, as the case may be.
9.5
INDEMNIFICATION
BY A COURT
Notwithstanding
any contrary determination in the specific case under Section 9.3 of this
Article IX, and notwithstanding the absence of any determination thereunder,
any
director or officer may apply to the Court of Chancery in the State of Delaware
for indemnification to the extent otherwise permissible under Sections 9.1
and
9.2 of this Article IX. The basis of such indemnification by a court shall
be a
determination by such court that indemnification of the director or officer
is
proper in the circumstances because such person has met the applicable standards
of conduct set forth in Section 9.1 or 9.2 of this Article IX, as the case
may
be. Neither a contrary determination in the specific case under Section 9.3
of
this Article IX nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice
of any application for indemnification pursuant to this Section 9.5 shall be
given to the corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking indemnification
shall also be entitled to be paid the expense of prosecuting such
application.
9.6
EXPENSES
PAYABLE IN ADVANCE
To
the
fullest extent not prohibited by the DGCL, or by any other applicable law,
expenses incurred by a person who is or was a director or officer in defending
any civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the corporation in advance of the final disposition of such
action, suit or proceeding; provided, however, that if the DGCL requires, an
advance of expenses incurred by any person in his or her capacity as a director
or officer (and not in any other capacity) shall be made only upon receipt
of an
undertaking by or on behalf of such person 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 IX.
9.7
NONEXCLUSIVITY
OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
The
indemnification and advancement of expenses provided by or granted pursuant
to
this Article IX shall not be deemed exclusive of any other rights to which
those
seeking indemnification or advancement of expenses may be entitled under the
Certificate, any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person’s official capacity and
as to action in another capacity while holding such office, it being the policy
of the corporation that indemnification of the persons specified in Sections
9.1
and 9.2 of this Article IX shall be made to the fullest extent permitted by
law.
The provisions of this Article IX shall not be deemed to preclude the
indemnification of any person who is not specified in Section 9.1 or 9.2 of
this
Article IX but whom the corporation has the power or obligation to indemnify
under the provisions of the DGCL, or otherwise. The corporation is specifically
authorized to enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advances, to the
fullest extent not prohibited by the DGCL, or by any other applicable
law.
9.8
INSURANCE
To
the
fullest extent permitted by the DGCL or any other applicable law, the
corporation may purchase and maintain insurance on behalf of any person who
is
or was a director, officer, employee or agent of the corporation, or is or
was a
director, officer, employee or agent of the corporation serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against such person and incurred
by
such person in any such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power or the obligation
to
indemnify such person against such liability under the provisions of this
Article IX.
9.9
CERTAIN
DEFINITIONS
For
purposes of this Article IX, references to “the corporation” shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to
indemnify its directors or officers, so that any person who is or was a director
or officer of such constituent corporation, or is or was a director or officer
of such constituent corporation serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
shall stand in the same position under the provisions of this Article IX with
respect to the resulting or surviving corporation as such person would have
with
respect to such constituent corporation if its separate existence had continued.
For purposes of this Article IX, references to “fines” shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to “serving at the request of the corporation” shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; and
a
person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner “not opposed to the best
interests of the corporation” as referred to in this Article IX.
9.10
SURVIVAL
OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
The
rights to indemnification and advancement of expenses conferred by this Article
IX shall continue as to a person who has ceased to be a director or officer
and
shall inure to the benefit of the heirs, executors, administrators and other
personal and legal representatives of such a person.
9.11
LIMITATION
ON INDEMNIFICATION
Notwithstanding
anything contained in this Article IX to the contrary, except for proceedings
to
enforce rights to indemnification (which shall be governed by Section 9.5
hereof), the corporation shall not be obligated to indemnify any director or
officer in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or consented
to
by the board of directors of the corporation.
9.12
INDEMNIFICATION
OF EMPLOYEES AND AGENTS
The
corporation may, to the extent authorized from time to time by the board of
directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the corporation similar to those conferred in this
Article IX to directors and officers of the corporation.
9.13
EFFECT
OF
AMENDMENT OR REPEAL
Neither
any amendment or repeal of any Section of this Article IX, nor the adoption
of
any provision of the Certificate or the bylaws inconsistent with this Article
IX, shall adversely affect any right or protection of any director, officer,
employee or other agent established pursuant to this Article IX existing at
the
time of such amendment, repeal or adoption of an inconsistent provision,
including without limitation by eliminating or reducing the effect of this
Article IX, for or in respect of any act, omission or other matter occurring,
or
any action or proceeding accruing or arising (or that, but for this Article
IX,
would accrue or arise), prior to such amendment, repeal or adoption of an
inconsistent provision.
ARTICLE
X — MISCELLANEOUS
10.1
PROVISIONS
OF CERTIFICATE GOVERN
In
the
event of any inconsistency between the terms of these bylaws and the
Certificate, the terms of the Certificate will govern.
10.2
AMENDMENT
The
bylaws of the corporation may be adopted, amended or repealed by the
corporation’s Boar. The fact that such power has been so conferred upon the
Board shall not divest the stockholders of the power, nor limit their power
to
adopt, amend or repeal bylaws.
NEURALSTEM,
INC.
a
Delaware corporation
CERTIFICATE
OF ADOPTION OF AMENDED AND RESTATED BYLAWS
The
undersigned hereby certifies that he or she is the duly elected, qualified,
and
acting Chief Executive Officer of Neuralstem Inc, a Delaware corporation and
that the foregoing amended and restated bylaws, comprising twenty one (24)
pages, were adopted as the corporation’s bylaws on July 16, 2007 by the
corporation’s board of directors as provided for in the corporations certificate
of incorporation filed with the Delaware secretary of state.
IN
WITNESS WHEREOF, the undersigned has hereunto set his or her hand this
16
th
day of
July, 2007.