BYLAWS
OF
GENERAL
MOLY, INC.,
a
Delaware corporation
ARTICLE I.
OFFICES
1.1
Registered
Office and Registered Agent
.
The
registered office of General Moly, Inc., a Delaware corporation (the “Company”),
shall be located in the State of Delaware at such place as may be fixed from
time to time by the Board of Directors (“Board”) upon filing of such notices as
may be required by law, and the registered agent shall have a business office
identical with such registered office. Any change in the registered agent or
registered office shall be effective upon filing such change with the Office
of
the Secretary of State of the State of Delaware.
1.2
Other
Offices
.
The
Company may have other offices within or outside the State of Delaware at such
place or places as the Board may from time to time determine.
ARTICLE
II.
MEETINGS
OF STOCKHOLDERS
2.1
Place
of Meetings.
Meetings
of stockholders of the Company shall be held at any place, within or outside
the
State of Delaware, designated by the Company’s 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 Company’s principal executive
office.
2.2
Annual
Meeting.
An
annual meeting of stockholders shall be held for the election of directors
and
for such other business as may properly come before the meeting at such date
and
time as may be designated by resolution of the Board from time to time. Any
other proper business may be transacted at the annual meeting.
2.3
Special
Meeting
.
A
special meeting of the stockholders may be called at any time by the Board,
chief executive officer or president (in the absence of a chief executive
officer) or by one or more stockholders holding shares in the aggregate entitled
to cast not less than 10% of the votes at that meeting.
If
any
person(s) other than the Board calls a special meeting, the request
shall:
(i)
be
in
writing;
(ii)
specify
the time of such meeting and the general nature of the business proposed to
be
transacted; and
(iii)
be
delivered personally or sent by registered mail or by facsimile transmission
to
the chair of the Board, the chief executive officer, the president (in the
absence of a chief executive officer) or the secretary of the Company.
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 9.1 of these Bylaws not
less than 10 or more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. 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.
2.5
Manner
of Giving Notice; Affidavit of Notic
e
.
Notice
of any meeting of stockholders shall be given:
(i)
personally;
(ii)
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 Company’s records;
or
(iii)
if
electronically transmitted, as provided in Section 9.1 of these
Bylaws.
An
affidavit of the secretary or an assistant secretary of the Company or of the
transfer agent or any other agent of the Company that the notice has been given
by mail or by a form of electronic transmission, as applicable, shall, in the
absence of fraud, be prima facie evidence of the facts stated
therein.
2.6
Quorum
.
Except
as otherwise provided by law, the Certificate of Incorporation or these Bylaws,
at each meeting of stockholders the presence in person or by proxy of the
holders of shares of stock having a majority of the votes which could be cast
by
the holders of all outstanding shares of stock entitled to vote at the meeting
shall be necessary and sufficient to constitute a quorum. If, however, such
quorum is not present or represented at any meeting of the stockholders, then
either (i) the chair of the meeting, or (ii) the stockholders entitled
to vote at the meeting, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present or represented.
2.7
Adjourned
Meeting; Notice
.
Any
meeting of stockholders, annual or special, may adjourn from time to time to
reconvene at the same or some other place, and notice need not be given of
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 Company may transact any business which might have been transacted
at the original meeting. If the adjournment is for more than 30 days, or if
after the adjournment a new record date is fixed for the adjourned meeting,
a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
2.8
Conduct
of Business
.
Meetings
of stockholders shall be presided over by the chair of the Board, if any, or
in
his or her absence by the vice chair of the Board, if any, or in his or her
absence by the president, or in his or her absence by a vice president, or
in
the absence of the foregoing persons by a chair designated by the Board, or
in
the absence of such designation by a chair chosen at the meeting. The secretary
shall act as secretary of the meeting, but in his or her absence any assistant
secretary may act as secretary, and in the absence of the secretary and all
assistant secretaries the chair of the meeting may appoint any person to act
as
secretary of the meeting. The chair of any meeting of stockholders shall
determine the order of business and the procedure at the meeting, including
such
regulation of the manner of voting and the conduct of business.
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
may be otherwise provided in the Certificate of Incorporation or these Bylaws,
each stockholder shall be entitled to one vote for each share of capital stock
held by such stockholder. Voting at meetings of stockholders need not be by
written ballot and need not be conducted by inspectors of election unless so
determined by the holders of shares of stock having a majority of the votes
which could be cast by the holders of all outstanding shares of stock entitled
to vote thereon which are present in person or by proxy at such meeting. Except
as otherwise provided in any corporate governance guidelines or other policies
or procedures adopted by the Board, at all meetings of stockholders for the
election of directors a plurality of the votes cast shall be sufficient to
elect. All other elections and questions shall, unless otherwise provided by
law, the Certificate of Incorporation or these Bylaws, be decided by the vote
of
the holders of shares of stock having a majority of the votes which could be
cast by the holders of all shares of stock entitled to vote thereon which are
present in person or represented by proxy at the meeting.
2.10
Stockholder
Action by Written Consent Without a Meeting
.
Unless
otherwise provided in the Certificate of Incorporation and subject to any stock
exchange or electronic trading market rules and regulations applicable to the
Company, any action required by the DGCL to be taken at any annual or special
meeting of stockholders of a Company, or any action which may be taken at any
annual or special meeting of such 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.
Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall 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 Company as provided in Section 228
of the DGCL. In the event that the action which is consented to is such as
would
have required the filing of a certificate under any provision of the DGCL,
if
such action had been voted on by stockholders at a meeting thereof, the
certificate filed under such provision shall state, in lieu of any statement
required by such provision concerning any vote of stockholders, that written
consent has been given in accordance with Section 228 of the
DGCL.
2.11
Record
Date for Stockholder Notice; Voting; Giving Consents
.
In
order that the Company may determine the stockholders entitled to notice of
or
to vote at any meeting of stockholders or any adjournment thereof, or entitled
to express consent to corporate action in writing without a meeting, or entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board and which record
date:
(i)
in
the
case of determination of stockholders entitled to notice of or to vote at any
meeting of stockholders or adjournment thereof, shall, unless otherwise required
by law, not be more than sixty nor less than ten days before the date of
such meeting;
(ii)
in
the
case of determination of stockholders entitled to express consent to corporate
action in writing without a meeting, shall not be more than ten days after
the date upon which the resolution fixing the record date is adopted by the
Board; and
(iii)
in
the
case of determination of stockholders for any other action, shall not be more
than sixty days prior to such other action.
If
no
record date is fixed by the Board:
(a)
the
record date for determining stockholders entitled to notice of or to vote at
a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the
meeting is held;
(b)
the
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting when no prior action of the Board
is required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Company in accordance with applicable law, or, if prior action by the Board
is
required by law, shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action; and
(c)
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.
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 or to express consent
or dissent to corporate action in writing without a meeting 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 filed in accordance
with the procedure established for the meeting, but no such proxy shall be
voted
or acted upon after three years from its date, unless the proxy provides for
a
longer period. 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 Company shall prepare and
make, at least 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 Company 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
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 Company’s principal executive office. In the
event that the Company determines to make the list available on an electronic
network, the Company may take reasonable steps to ensure that such information
is available only to stockholders of the Company. 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. Such list shall presumptively determine
the identity of the stockholders entitled to vote at the meeting and the number
of shares held by each of them. Failure to comply with the requirements of
this
Section shall not affect the validity of any action taken at such
meeting.
ARTICLE III.
DIRECTORS
3.1
Powers
.
Subject
to the provisions of the DGCL and any limitations in the Certificate of
Incorporation or these Bylaws relating to action required to be approved by
the
stockholders or by the outstanding shares, the business and affairs of the
Company shall be managed and all corporate powers shall be exercised by or
under
the direction of the Board.
3.2
Number
of Directors
.
All
corporate powers shall be exercised by or under the authority of, and the
business and affairs of a Company shall be managed under the direction of the
Board, except as may be otherwise provided in the provisions of the DGCL or
the
Certificate of Incorporation. The Board shall consist of not less than one
(1)
persons nor more than fifteen (15) persons, who shall be elected for a term
as
set forth in Section 3.3 of these Bylaws, and shall hold office until their
successors are elected and qualify. Directors need not be stockholders or
residents of the State of Delaware. In addition to the powers and authorities
expressly conferred upon the Company by these Bylaws and the Certificate of
Incorporation, the Board may exercise all such powers of the Company and do
all
such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or done
by
the stockholders.
3.3
Election,
Qualification and Term of Office of Directo
rs
.
The
Directors shall be divided into three (3) classes, as nearly equal in number
as
possible. The term of office of the first class shall expire at the 2008 annual
meeting of the stockholders of the Corporation; the term of office of the second
class shall expire at the 2009 annual meeting of the stockholders of the
Corporation; and the term of office of the third class shall expire at the
2010
annual meeting of the stockholders of the Corporation. At each annual meeting
of
the stockholders after such classification, the number of directors equal to
the
number of the class whose term expires on the day of such meeting shall be
elected for a term of three (3) years. Directors shall hold office until
expiration of the terms for which they were elected and qualified; provided,
however, that any director may be removed from office as a director at any
time
by the stockholders, but only for cause, and only by the affirmative vote of
a
majority of the outstanding voting power entitled to elect such director. If
the
office of any director becomes vacant by reason of death, resignation,
retirement, disqualification, removal from office, increase in the number of
directors or otherwise, a majority of the remaining directors, although less
than a quorum, at a meeting called for that purpose, or a sole remaining
director, may choose a successor, and the director so chosen shall hold office
until the expiration of the term of the class for which appointed or until
a
successor is duly elected and qualified, or until such director’s earlier
resignation or removal.
3.4
Resignation
and Vacancies
.
Any
director may resign at any time upon notice given in writing or by electronic
transmission to the Company. When one or more directors so 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 in the filling of other
vacancies.
Unless
otherwise provided in the Certificate of Incorporation or these
Bylaws:
(i)
Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors elected by all of the stockholders having the right to
vote
as a single class may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director.
(ii)
Whenever
the holders of any class or classes of stock or series thereof are entitled
to
elect one or more directors by the provisions of the Certificate of
Incorporation, vacancies and newly created directorships of such class or
classes or series may be filled by a majority of the directors elected by such
class or classes or series thereof then in office, or by a sole remaining
director so elected.
If
at any
time, by reason of death or resignation or other cause, the Company should
have
no directors in office, then any officer or any stockholder or an executor,
administrator, trustee or guardian of a stockholder, or other fiduciary
entrusted with like responsibility for the person or estate of a stockholder,
may call a special meeting of stockholders in accordance with the provisions
of
the Certificate of Incorporation or these Bylaws, or may apply to the Court
of
Chancery for a decree summarily ordering an election as provided in
Section 211 of the DGCL.
If,
at
the time of filling any vacancy or any newly created directorship, the directors
then in office constitute less than a majority of the whole Board (as
constituted immediately prior to any such increase), then the Court of Chancery
may, upon application of any stockholder or stockholders holding at least 10%
of
the total number of the shares at the time outstanding having the right to
vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen
by
the directors then in office as aforesaid, which election shall be governed
by
the provisions of Section 211 of the DGCL as far as
applicable.
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.
Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws,
members of the Board, or any committee designated by the Board, may participate
in a meeting of the Board, or any committee, by means of conference telephone
or
other communications equipment by means of which all persons participating
in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
3.6
Regular
Meetings
.
Regular
meetings of the Board may be held without 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 chair of the Board, the chief executive officer, the president, the
secretary or any two directors.
Notice
of
the time and place of special meetings shall be:
(i)
delivered
personally by hand, by courier or by telephone;
(ii)
sent
by
United States first-class mail, postage prepaid;
(iii)
sent
by
facsimile; or
(iv)
sent
by
electronic mail,
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 Company’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 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 to the director. The notice
need not specify the place of the meeting (if the meeting is to be held at
the
Company’s principal executive office) nor the purpose of the
meeting.
3.8
Qu
orum
.
At all
meetings of the Board, a majority of the total number of acting directors shall
constitute a quorum for the transaction of business. 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 of Incorporation or these Bylaws. If a quorum is not present
at
any meeting of the Board, then the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present.
A
meeting
at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved
by
at least a majority of the required quorum for that meeting.
3.9
Board
Action by Written Consent Without a Meeting
.
Unless
otherwise restricted by the Certificate of Incorporation, these Bylaws, or
applicable stock exchange or electronic trading market rules or regulations,
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.
3.10
Fees
and Compensation of Directors
.
Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, the
Board shall have the authority to fix the compensation of directors.
3.11
Prohibition
of Loans to Officers
.
The
Company may not lend money to, or guarantee any obligation of, or otherwise
assist any officer of the Company, including any officer who is a director
of
the Company.
3.12
Removal
of Director
s
.
Unless
otherwise restricted by statute, the Certificate of Incorporation or these
Bylaws, so long as the Board is classified as provided in Section 141(d) of
the
DGCL, any director or the entire Board may be removed, only for cause, by the
holders of a majority of the shares then entitled to vote at an election of
directors.
No
reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of such director’s term of
office.
ARTICLE IV.
COMMITTEES
4.1
Committees
of Directors
.
The
Board, by resolution adopted by a majority of the full Board, may designate
from
among its members an executive committee and one or more other committees each
of which, to the extent provided in such resolution of the Certificate of
Incorporation or these Bylaws, shall have and may exercise all the authority
of
the Board, except that no such committee shall have the authority to: (i)
declare dividends, except at a rate or in periodic amount determined by the
Board; (ii) approve or recommend to stockholders actions or proposals required
by this title to be approved by stockholders; (iii) fill vacancies on the Board
or any committee thereof; (iv) amend the Bylaws; (v) authorize or approve the
reacquisition of shares unless pursuant to general formula or method specified
by the Board; (vi) fix compensation of any director for serving on the Board
or
on any committee; (vii) approve a plan of merger, consolidation, or exchange
of
shares not requiring stockholder approval; (viii) reduce earned or capital
surplus; or (ix) appoint other committees of the Board or the members
thereof.
4.2
Committee
Minutes
.
Each
committee shall keep regular minutes of its meetings and report the same to
the
Board when required, and minutes of all committee meetings so kept shall be
maintained by the secretary in the Company’s minute book.
ARTICLE V.
OFFICERS
5.1
Officers
.
The
officers of the Company shall be a chief executive officer and/or president
and
a secretary. The Company may also have, at the discretion of the Board, a chair
of the Board, a vice chair of the Board, a chief executive officer, a chief
financial officer or 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 with such titles as may
be
appointed in accordance with the provisions of these Bylaws. Any number of
offices may be held by the same person.
5.2
Appointment
of Officers
.
The
Board shall appoint the officers of the Company, except such officers as may
be
appointed in accordance with the provisions of Sections 5.3 and 5.5 of
these Bylaws, subject to the rights, if any, of an officer under any contract
of
employment.
5.3
Subordinate
Officers
.
The
Board may appoint, or empower the chief executive officer or, in the absence
of
a chief executive officer, the president, to appoint, such other officers and
agents as the business of the Company 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 Offi
cers
.
Subject
to the rights, if any, of an officer under any contract of employment, any
officer may be removed, either with or without cause, by an affirmative vote
of
the majority of the Board at any regular or special meeting of the Board or,
except in the case of an officer chosen 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 Company. 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 Company under any contract to which the officer is a
party.
5.5
Vacancies
in Off
ices
.
Any
vacancy occurring in any office of the Company shall be filled by the Board
or
as provided in Section 5.2.
5.6
Representation
of Shares of Other Corporation
s
.
The
chair of the Board, the president, any vice president, the treasurer, the
secretary or assistant secretary of the Company, or any other person authorized
by the Board or the president or a vice president, is authorized to vote,
represent, and exercise on behalf of the Company all rights incident to any
and
all shares of any other corporation or corporations standing in the name of
the
Company. 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.
5.7
Authority
and Duties of Offic
ers
.
All
officers of the Company shall respectively have such authority and perform
such
duties in the management of the business of the Company as may be designated
from time to time by the Board or the stockholders and, to the extent not so
provided, as generally pertain to their respective offices, subject to the
control of the Board.
The
secretary shall have responsibility for preparing minutes of the directors’ and
stockholders’ meetings and authenticating records of the Company.
ARTICLE VI.
RECORDS
AND REPORTS
6.1
Maintenance
and Inspection of Record
s
.
The
Company 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 amended to date, accounting books, and
other records.
Any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during
the
usual hours for business to inspect for any proper purpose the Company’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 so to act on behalf of
the
stockholder. The demand under oath shall be directed to the Company 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 Company’s stock ledger, a list of
its stockholders, and its other books and records for a purpose reasonably
related to his or her position as a director. The Court of Chancery is hereby
vested with the exclusive jurisdiction to determine whether a director is
entitled to the inspection sought. The Court may summarily order the Company
to
permit the director to inspect any and all books and records, the stock ledger,
and the stock list and to make copies or extracts therefrom. The Court may,
in
its discretion, prescribe any limitations or conditions with reference to the
inspection, or award such other and further relief as the Court may deem just
and proper.
6.3
Annual
Report
.
The
Company shall cause an annual report to be sent to the stockholders of the
Company to the extent required by applicable law. If and so long as there are
fewer than 100 holders of record of the Company’s shares, the requirement of
sending of an annual report to the stockholders of the Company is expressly
waived (to the extent permitted under applicable law).
ARTICLE VII.
SHARES
7.1
Issuance
of Shares
.
No
shares of the Company shall be issued unless authorized by the Board. Such
authorization shall include the maximum number of shares to be issued and the
consideration to be received for each share. No certificate shall be issued
for
any share until such share is fully paid. The shares of the Company may be
represented by certificates or may be uncertificated shares.
7.2
Certificates
for Shares
.
Certificates representing shares of the Company shall be in such form as shall
be determined by the Board. Such certificates shall be signed by two officers
of
the
Company
designated by the Board. The signatures of such officers may be facsimiles
if
the certificate is manually signed on behalf of a transfer agent, or registered
by a registrar, other than the
Company
itself
or an employee of the
Company
.
Certificates for shares shall be consecutively numbered or otherwise identified.
The name and address of the person to whom the shares represented thereby are
issued, with the number of shares or other identification and the date of issue,
shall be entered on the share transfer books of the
Company
.
All
certificates surrendered to the
Company
for
transfer shall be cancelled and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered
and
cancelled, except that in case of a lost, destroyed or mutilated certificate,
a
new one may be issued therefor upon such terms and indemnity to the
Company
as the
Board may prescribe. Each certificate representing shares shall state upon
the
face thereof:
|
(i)
|
The
name of the Company
;
|
(ii)
That
the
Company is organized under the laws of the State of Delaware;
(iii)
The
name
of the person to whom issued;
(iv)
The
number and class of shares; and
(v)
The
designation of the series, if any, which such certificates
represent.
If
the
Company is authorized to issue different classes of shares or different series
within a class, the designations, relative rights, preferences and limitations
applicable to each class and the variations in rights, preferences and
limitations determined for each series and the board’s authority to determine
variations for future series must be summarized on the front or back of each
certificate. Alternatively, each certificate may state conspicuously on its
front or back that the Company will furnish the stockholder this information
on
request in writing and without charge.
7.3
Transfers
.
Transfers of stock shall be made only upon the share transfer books of the
Company, kept at the registered office of the Company or at its principal place
of business, or at the office of its transfer agent or registrar, and before
a
new certificate is issued the older certificate shall be surrendered for
cancellation. The Board may, by resolution, open a share registered in any
state
of the United States, and may employ an agent or agents to keep such register,
and to record transfers of shares therein. Shares shall be transferred by
delivery of the certificates therefor, accompanied either by an assignment
in
writing on the back of the certificate or an assignment separate from
certificate, or by a written power of attorney to sell, assign and transfer
the
same, signed by the holder of said certificate.
7.4
Registered
Owner
.
Registered stockholders shall be treated by the Company as the holders in fact
of the stock standing in their respective names and the Company shall not be
bound to recognize any equitable or other claim to or interest in any share
on
the part of any other person, whether or not it shall have express or other
notice thereto, except as expressly provided below or by the laws of the State
of Delaware. The Board may adopt by resolution a procedure whereby a stockholder
of the Company may certify in writing to the Company that all or a portion
of
the shares registered in the name of such stockholder are held for the account
of a specified person or persons. The resolution shall set forth:
|
(i)
|
The
classification of stockholder who may
certify;
|
(ii)
The
purpose or purposes for which the certification may be made;
(iii)
The
form
of certification and information to be contained therein;
(iv)
If
the
certification is with respect to a record date or closing of the share transfer
books, the date within which the certification must be received by the Company;
and
(v)
Such
other provisions with respect to the procedure as are deemed necessary or
desirable.
Upon
receipt by the Company of a certification complying with the procedure, the
persons specified in the certification shall be deemed, for the purpose or
purposes set forth in the certification, to be the holders of record of the
number of shares specified in place of the stockholder making the
certification.
7.5
Mutilated,
Lost or Destroyed Certificates
.
In case
of any mutilation, loss or destruction of any certificate of stock, another
may
be issued in its place on proof of such mutilation, loss or destruction. The
Board may impose conditions on such issuance and may require the giving of
a
satisfactory bond or indemnity to the Company in such sum as they might
determine or establish such other procedures as they deem
necessary.
7.6
Fractional
Shares or Scrip
.
The
Company may: (i) issue fractions of a share which shall entitle the holder
to
exercise voting rights, to receive dividends thereon, and to participate in
any
of the assets of the Company in the event of liquidation; (ii) arrange for
the
disposition of the fractional interests by those entitled thereto; (iii) pay
in
cash the fair value of fractions of a share as of the time when those entitled
to receive such shares are determined; or (iv) issue scrip in registered or
bearer form which shall entitle the holder to receive a certificate for a full
share upon the surrender of such scrip aggregating a full share. The Board
may
cause such scrip to be issued subject to the condition that it shall become
void
if not exchanged for certificates representing full shares before a specified
date, or subject to the condition that the shares for which such scrip is
exchangeable may be sold by the Company and the proceeds thereof distributed
to
the holders of such scrip, or subject to any other conditions which the Board
may deem advisable.
7.7
Share
of Another Corporation
.
Shares
owned by the Company in another corporation, domestic or foreign, may be voted
by such officer, agent or proxy as the Board may determine.
7.8
Issuance/Consideration
.
Shares
may be issued at a price determined by the Board of Directors, or the Board
may
set a minimum price or establish a formula or method by which the price may
be
determined. Consideration for shares may consist of cash, promissory notes,
services performed, and any other lawful form of consideration, including
tangible or intangible property. If shares are issued for other than cash,
the
Board of Directors shall determine the value of the consideration. Shares issued
when the Company receives the consideration determined by the Board are validly
issued, fully paid and nonassesable. A good faith judgment of the Board of
Directors as to the value of the consideration received for shares is
conclusive.
The
Company may place shares issued for a contract for future services or a
promissory note in escrow, or make other arrangements to restrict the transfer
of the shares, and make credit distributions in respect of the shares against
their purchase price, until the services are performed or the note is paid.
If
the services are not performed or the note is not paid, the shares escrowed
or
restricted and the distributions credited may be cancelled in whole or in
part.
7.9
Restriction
of Transfer
.
All
certificates representing unregistered shares of the Company shall bear the
following legend on the face of the certificate or on the reverse of the
certificate if a reference to the legend is contained on the face:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE LAW, AND NO INTEREST THEREIN
MAY
BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS
(A) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE
STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES
OR
(B) THIS CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF
THESE SECURITIES (CONCURRED IN BY LEGAL COUNSEL FOR THIS CORPORATION) STATING
THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION OR THIS CORPORATION OTHERWISE
SATISFIED ITSELF THAT SUCH TRANSACTION IS EXEMPT FORM REGISTRATION. NEITHER
THE
OFFERING OF THE SECURITIES NOR ANY OFFERING MATERIALS HAVE BEEN REVIEWED BY
ANY
ADMINISTRATOR UNDER THE SECURITIES ACT OF 1933, OR ANY APPLICABLE STATE LAW.
THE
TRANSFER AGENT HAS BEEN ORDERED TO EFFECTUATE TRANSFERS OF THIS CERTIFICATE
ONLY
IN ACCORDANCE WITH THE ABOVE INSTRUCTIONS.
ARTICLE VIII.
GENERAL
MATTERS
8.1
Construction;
Definition
s
.
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 co
rporation
and a natural person.
8.2
Dividends
.
The
Board may, from time to time, declare and the Company may pay dividends on
its
outstanding shares in cash, property, or its own shares, except when the Company
is insolvent or when the payment thereof would render the Company insolvent or
when the declaration or payment thereof would be contrary to any restrictions
contained in the Certificate of Incorporation subject to the following
provisions:
(1)
Except
as
otherwise provided in this Section, dividends may be declared and paid in cash
or property only out of:
(a)
The
unreserved and unrestricted net earned surplus of the corporation,
or
(b)
The
unreserved and unrestricted net earnings of the current fiscal year and the
next
preceding fiscal year taken as a single period. No dividend out of unreserved
and unrestricted net earnings so computed shall be paid which would reduce
the
net assets of the corporation below the aggregate preferential amount payable
in
the event of voluntary liquidation to the holders of shares having preferential
rights to the assets of the Company in the event of liquidation.
(2)
Dividends
may be declared and paid in its own treasury shares.
(3)
Dividends
may be declared and paid in its own authorized but unissued shares out of any
unreserved and unrestricted surplus of the corporation upon the following
conditions:
(a)
If
a
dividend is payable in its own shares having a par value, such shares shall
be
issued at not less than the par value thereof and there shall be transferred
to
stated capital at the time such dividend is paid an amount of surplus equal
to
the aggregate par value of the shares to be issued as a dividend.
(b)
If
a
dividend is payable in its own shares without par value, such shares shall
be
issued at such stated value as shall be fixed by the Board by resolution adopted
at the time such dividend is declared, and there shall be transferred to stated
capital at the time such dividend is paid an amount of surplus equal to the
aggregate stated value so fixed in respect of such shares; and the amount per
share so transferred to stated capital shall be disclosed to the shareholders
receiving such dividend concurrently with the payment thereof.
8.3
Fiscal
Year
.
The
fiscal year of the Company shall be fixed by resolution of the Board and may
be
changed by the Board.
8.4
Seal
.
The
Company may adopt a corporate seal, which shall be adopted and which may be
altered by the Board. The Company may use the corporate seal by causing it
or a
facsimile thereof to be impressed or affixed or in any other manner
reproduced.
8.5
Waiver
of Notice
.
Whenever
notice is required to be given under any provision of the DGCL, the Certificate
of Incorporation 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 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 of Incorporation or these
Bylaws.
ARTICLE
IX.
NOTICE
BY ELECTRONIC TRANSMISSION
9.1
Notice
by Electronic Transmission
.
Without
limiting the manner by which notice otherwise may be given effectively to
stockholders pursuant to the DGCL, the Certificate of Incorporation or these
Bylaws, any notice to stockholders given by the Company under any provision
of
the DGCL, the Certificate of Incorporation 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 Company. Any such consent shall be deemed revoked
if:
(i)
the
Company is unable to deliver by electronic transmission two consecutive notices
given by the Company in accordance with such consent; and
(ii)
such
inability becomes known to the secretary or an assistant secretary of the
Company or to the transfer agent, or other person responsible for the giving
of
notice.
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:
(i)
if
by
facsimile telecommunication, when directed to a number at which the stockholder
has consented to receive notice;
(ii)
if
by
electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice;
(iii)
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
(iv)
if
by any
other form of electronic transmission, when directed to the stockholder.
An
affidavit of the secretary or an assistant secretary or of the transfer agent
or
other agent of the Company 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.
9.2
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.
9.3
Inapplicability
.
Notice
by a form of electronic transmission shall not apply to Sections 164, 296,
311, 312 or 324 of the DGCL.
ARTICLE X.
INDEMNIFICATION
10.1
Indemnification
of Directors and Officers
.
The
Company shall indemnify and hold harmless, to the fullest extent permitted
by
the DGCL as it presently exists or may hereafter be amended, any director or
officer of the Company who was or is made or is threatened to be made a party
or
is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a “Proceeding”) by reason of the fact
that he or she, or a person for whom he or she is the legal representative,
is
or was a director, officer, employee or agent of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust, enterprise
or
non-profit entity, including service with respect to employee benefit plans,
against all liability and loss suffered and expenses reasonably incurred by
such
person in connection with any such Proceeding. The Company shall be required
to
indemnify a person in connection with a Proceeding initiated by such person
only
if the Proceeding was authorized by the Board.
10.2
Indemnification
of Others
.
The
Company shall have the power to indemnify and hold harmless, to the extent
permitted by applicable law as it presently exists or may hereafter be amended,
any employee or agent of the Company who was or is made or is threatened to
be
made a party or is otherwise involved in any Proceeding by reason of the fact
that he or she, or a person for whom he or she is the legal representative,
is
or was an employee or agent of the Company or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses reasonably incurred by such person in connection
with any such Proceeding.
10.3
Prepayment
of Expenses
.
The
Company shall pay the expenses incurred by any officer or director of the
Company, and may pay the expenses incurred by any employee or agent of the
Company, in defending any Proceeding in advance of its final disposition;
provided, however, that the payment of expenses incurred by a person in advance
of the final disposition of the Proceeding shall be made only upon receipt
of an
undertaking by the person to repay all amounts advanced if it should be
ultimately determined that the person is not entitled to be indemnified under
this Article X or otherwise.
10.4
Determination;
Claim
.
If a
claim for indemnification or payment of expenses under this Article X is
not paid in full within sixty days after a proper written claim therefor
has been received by the Company, the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Company shall have the burden of proving that the claimant was not entitled
to the requested indemnification or payment of expenses under applicable law.
10.5
Non-Exclusivity
of Rights
.
The
rights conferred on any person by this Article X shall not be exclusive of
any other rights which such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, these Bylaws, agreement,
vote of stockholders or disinterested directors or otherwise.
10.6
Insurance
.
The
Company may purchase and maintain insurance on behalf of any person who is
or
was a director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him or her and incurred by him or her
in
any such capacity, or arising out of his or her status as such, whether or
not
the Company would have the power to indemnify him or her against such liability
under the provisions of the DGCL.
10.7
Other
Indemnification
.
The
Company’s obligation, if any, to indemnify any person who was or is serving at
its request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or non-profit entity shall be
reduced by any amount such person may collect as indemnification from such
other
corporation, partnership, joint venture, trust, enterprise or non-profit
enterprise.
10.8
Amendment
or Repeal
.
Any
repeal or modification of the foregoing provisions of this Article X shall
not adversely affect any right or protection hereunder of any person in respect
of any act or omission occurring prior to the time of such repeal or
modification.
ARTICLE
XI
AMENDMENTS
11.1
By
Shareholders
.
Except
as
provided in the next sentence, these Bylaws may be altered, amended or repealed
by the affirmative vote of the holders of not less than two-thirds (2/3) of
the
outstanding voting power entitled to vote at any regular or special meeting
of
the shareholders. Notwithstanding the foregoing, the provisions of Sections
2.3,
3.3, 3.4, 3.12 and 11.1 and Article X of these Bylaws may not be altered,
amended or repealed in whole or in part, unless authorized by the affirmative
vote of the holders of not less than eighty percent (80%) of the outstanding
voting power entitled to vote.
11.2
By
Directors
.
The
Board
shall have the power to make, alter, amend and repeal the Bylaws of this
corporation. However, any such Bylaws, or any alteration, amendment or repeal
of
the Bylaws, may be changed or repealed by the stockholders in accordance with
the provisions of Section 11.1 of these Bylaws.
11.3
Emergency
Bylaws
.
The
Board
may adopt emergency Bylaws pursuant to Section 110 of the DGCL, which shall
be
operative during any emergency in the conduct of the business of the Company
resulting from an attack on the United States or any nuclear or atomic
disaster.
