AMENDED
AND RESTATED BYLAWS OF
SUNESIS
PHARMACEUTICALS, INC.
(a
Delaware corporation)
(Approved
December 5, 2007)
TABLE
OF CONTENTS
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Page
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ARTICLE
I - CORPORATE OFFICES
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1
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1.1
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REGISTERED
OFFICE
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1
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1.2
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OTHER
OFFICES
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1
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ARTICLE
II - MEETINGS OF STOCKHOLDERS
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1
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2.1
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PLACE
OF MEETINGS
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1
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2.2
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ANNUAL
MEETING
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1
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2.3
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SPECIAL
MEETING
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1
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2.4
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ADVANCE
NOTICE PROCEDURES; NOTICE OF STOCKHOLDERS’ MEETINGS
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1
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2.5
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MANNER
OF GIVING NOTICE; AFFIDAVIT OF NOTICE
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3
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2.6
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QUORUM
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3
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2.7
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ADJOURNED
MEETING; NOTICE
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3
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2.8
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CONDUCT
OF BUSINESS
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3
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2.9
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VOTING
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4
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2.10
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STOCKHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A MEETING
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4
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2.11
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RECORD
DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
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4
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2.12
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PROXIES
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4
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2.13
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LIST
OF STOCKHOLDERS ENTITLED TO VOTE
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4
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2.14
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INSPECTORS
OF ELECTION
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5
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ARTICLE
III - DIRECTORS
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6
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3.1
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POWERS
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6
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3.2
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NUMBER
OF DIRECTORS
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6
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3.3
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ELECTION,
QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
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6
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3.4
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RESIGNATION
AND VACANCIES
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6
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3.5
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PLACE
OF MEETINGS; MEETINGS BY TELEPHONE
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7
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3.6
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REGULAR
MEETINGS
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7
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3.7
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SPECIAL
MEETINGS; NOTICE
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7
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3.8
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QUORUM
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7
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3.9
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BOARD
ACTION BY WRITTEN CONSENT WITHOUT A MEETING
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8
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3.10
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FEES
AND COMPENSATION OF DIRECTORS
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8
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3.11
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REMOVAL
OF DIRECTORS
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8
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ARTICLE
IV - COMMITTEES
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8
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4.1
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COMMITTEES
OF DIRECTORS
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8
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4.2
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COMMITTEE
MINUTES
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8
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4.3
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MEETINGS
AND ACTION OF COMMITTEES
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9
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ARTICLE
V - OFFICERS
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9
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5.1
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OFFICERS
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9
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5.2
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APPOINTMENT
OF OFFICERS
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9
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TABLE
OF CONTENTS
(continued)
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Page
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5.3
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SUBORDINATE
OFFICERS
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9
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5.4
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REMOVAL
AND RESIGNATION OF OFFICERS
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10
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5.5
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VACANCIES
IN OFFICES
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10
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5.6
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REPRESENTATION
OF SHARES OF OTHER CORPORATIONS
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10
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5.7
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AUTHORITY
AND DUTIES OF OFFICERS
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10
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ARTICLE
VI - RECORDS AND REPORTS
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10
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6.1
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MAINTENANCE
AND INSPECTION OF RECORDS
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10
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6.2
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INSPECTION
BY DIRECTORS
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11
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ARTICLE
VII - GENERAL MATTERS
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11
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7.1
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EXECUTION
OF CORPORATE CONTRACTS AND INSTRUMENTS
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11
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7.2
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STOCK
CERTIFICATES; PARTLY PAID SHARES
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11
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7.3
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SPECIAL
DESIGNATION ON CERTIFICATES
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11
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7.4
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LOST
CERTIFICATES
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12
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7.5
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CONSTRUCTION;
DEFINITIONS
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12
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7.6
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DIVIDENDS
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12
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7.7
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FISCAL
YEAR
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12
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7.8
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SEAL
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12
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7.9
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TRANSFER
OF STOCK
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12
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7.10
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STOCK
TRANSFER AGREEMENTS
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13
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7.11
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REGISTERED
STOCKHOLDERS
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13
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7.12
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WAIVER
OF NOTICE
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13
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ARTICLE
VIII - NOTICE BY ELECTRONIC TRANSMISSION
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13
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8.1
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NOTICE
BY ELECTRONIC TRANSMISSION
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13
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8.2
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DEFINITION
OF ELECTRONIC TRANSMISSION
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14
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8.3
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INAPPLICABILITY
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14
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ARTICLE
IX - INDEMNIFICATION
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14
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9.1
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INDEMNIFICATION
OF DIRECTORS AND OFFICERS
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14
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9.2
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INDEMNIFICATION
OF OTHERS
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14
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9.3
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PREPAYMENT
OF EXPENSES
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15
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9.4
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DETERMINATION;
CLAIM
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15
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9.5
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NON-EXCLUSIVITY
OF RIGHTS
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15
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9.6
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INSURANCE
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15
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9.7
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OTHER
INDEMNIFICATION
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15
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9.8
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AMENDMENT
OR REPEAL
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15
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ARTICLE
X - AMENDMENTS
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16
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AMENDED
AND RESTATED BYLAWS OF
SUNESIS
PHARMACEUTICALS, INC.
(Approved
December 5, 2007)
ARTICLE
I - CORPORATE OFFICES
1.1
REGISTERED
OFFICE.
The
registered office of Sunesis Pharmaceuticals, Inc. shall be fixed in the
corporation’s certificate of incorporation, as the same may be amended 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, 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.
2.3
SPECIAL
MEETING.
A
special
meeting of the stockholders may be called at any time by the Board, chairperson
of the Board, chief executive officer or president (in the absence of a chief
executive officer), but such special meetings may not be called by any other
person or persons.
No
business may be transacted at such special meeting other than the business
specified in such notice to stockholders. Nothing contained in this paragraph
of
this Section 2.3 shall be construed as limiting, fixing, or affecting the
time when a meeting of stockholders called by action of the Board may be
held.
2.4
ADVANCE
NOTICE PROCEDURES; NOTICE OF STOCKHOLDERS’ MEETINGS.
(i)
At
an
annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. 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
of
directors, (B) otherwise properly brought before the meeting by or at the
direction of the board of directors, or (C)
otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before an annual meeting by a stockholder, the stockholder
must
have given timely notice thereof in writing to the secretary of the corporation.
To be timely, a stockholder’s notice must be delivered to or mailed and received
at the principal executive offices of the corporation not less than one hundred
twenty (120) calendar days before the one year anniversary of the date on which
the corporation first mailed its proxy statement to stockholders in connection
with the previous year’s annual meeting of stockholders;
provided
,
however
,
that in
the event that no annual meeting was held in the previous year or the date
of
the annual meeting has been changed by more than thirty (30) days from the
date
of the prior year’s meeting, notice by the stockholder to be timely must be so
received not later than the close of business on the later of one hundred twenty
(120) calendar days in advance of such annual meeting and ten (10) calendar
days
following the date on which public announcement of the date of the meeting
is
first made. A stockholder’s notice to the secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting: (a) 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, (b) the name
and
address, as they appear on the corporation’s books, of the stockholder proposing
such business, (c) the class and number of shares of the corporation that are
beneficially owned by the stockholder, (d) any material interest of the
stockholder in such business, and (e) 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 “1934 Act”), in his capacity as a
proponent to a stockholder proposal. 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 the regulations promulgated under the 1934 Act.
Notwithstanding anything in these bylaws to the contrary, no business shall
be
conducted at any annual meeting except in accordance with the procedures set
forth in this paragraph (i). The chairman of the annual meeting shall, if the
facts warrant, determine and declare at the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this paragraph (i), and, if he should so determine, he shall so declare at
the
meeting that any such business not properly brought before the meeting shall
not
be transacted.
(ii)
Only
persons who are nominated in accordance with the procedures set forth in this
paragraph (ii) shall be eligible for election as directors. Nominations of
persons for election to the board of directors of the corporation may be made
at
a meeting of stockholders by or at the direction of the board of directors
or by
any stockholder of the corporation entitled to vote in the election of directors
at the meeting who complies with the notice procedures set forth in this
paragraph (ii). Such nominations, other than those made by or at the direction
of the board of directors, shall be made pursuant to timely notice in writing
to
the secretary of the corporation in accordance with the provisions of paragraph
(i) of this Section 2.4. Such stockholder’s notice shall set forth (a) as to
each person, if any, whom the stockholder proposes to nominate for election
or
re-election as a director: (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the class and number of shares of the corporation that are
beneficially owned by such person, (D) 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 (E) 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 1934 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 (b) as to such stockholder giving
notice, the information required to be provided pursuant to paragraph (i) of
this Section 2.4. At the request of the board of directors, any person nominated
by a stockholder for election as a director shall furnish to the secretary
of
the corporation that information required to be set forth in the stockholder’s
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a director of the corporation unless nominated in accordance
with the procedures set forth in this paragraph (ii). The chairman of the
meeting shall, if the facts warrant, determine and declare at the meeting that
a
nomination was not made in accordance with the procedures prescribed by these
bylaws, and if he should so determine, he shall so declare at the meeting,
and
the defective nomination shall be disregarded.
These
provisions shall not prevent the consideration and approval or disapproval
at an
annual meeting of reports of officers, directors and committees of the board
of
directors, but in connection therewith no new business shall be acted upon
at
any such meeting unless stated, filed and received as herein provided.
Notwithstanding
anything
in these bylaws to the contrary, no business brought before a meeting by a
stockholder shall be conducted at an annual meeting except in accordance with
procedures set forth in this Section 2.4.
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 10 nor 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 NOTICE.
Notice
of
any meeting of stockholders shall be given:
(i)
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; or
(ii)
if
electronically transmitted as provided in Section 8.1 of these
bylaws.
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 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.
The
holders of a majority of the stock issued and outstanding and entitled to vote,
present in person or represented by proxy, shall constitute a quorum for the
transaction of business at all meetings of the stockholders. If, however, such
quorum is not present or represented at any meeting of the stockholders, then
either (i) the chairperson 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.
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.
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 adjourned meeting, the corporation 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.
The
chairperson 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.
2.10
STOCKHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Subject
to the rights of the holders of the shares of any series of Preferred Stock
or
any other class of stock or series thereof having a preference over the Common
Stock as dividend or upon liquidation, any action required or permitted to
be
taken by the stockholders of the corporation must be effected at a duly called
annual or special meeting of stockholders of the corporation and may not be
effected by any consent in writing by such stockholders.
2.11
RECORD
DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS.
In
order
that the corporation may determine the stockholders entitled to notice of or
to
vote at any meeting of stockholders or any adjournment thereof, or 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, in advance, a record date, which record date shall not precede the
date
on which the resolution fixing the record date is adopted and which shall not
be
more than 60 nor less than 10 days before the date of such meeting, nor more
than 60 days prior to any other such action.
If
the
Board does not so fix a record date:
(i)
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.
(ii)
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 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 corporation 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 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 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
executive office. 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.
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.
2.14
INSPECTORS
OF ELECTION
A
written
proxy may be in the form of a telegram, cablegram, or other means of electronic
transmission which sets forth or is submitted with information from which it
can
be determined that the telegram, cablegram, or other means of electronic
transmission was authorized by the person.
Before
any meeting of stockholders, the board of directors shall appoint an inspector
or inspectors of election to act at the meeting or its adjournment. The number
of inspectors shall be either one (1) or three (3). If any person appointed
as
inspector fails to appear or fails or refuses to act, then the chairperson
of
the meeting may, and upon the request of any stockholder or a stockholder's
proxy shall, appoint a person to fill that vacancy.
Such
inspectors shall:
(i)
determine
the number of shares outstanding and the voting power of each, the number of
shares represented at the meeting, the existence of a quorum, and the
authenticity, validity, and effect of proxies;
(ii)
receive
votes, ballots or consents;
(iii)
hear
and
determine all challenges and questions in any way arising in connection with
the
right to vote;
(iv)
count
and
tabulate all votes or consents;
(v)
determine
when the polls shall close;
(vi)
determine
the result; and
(vii)
do
any
other acts that may be proper to conduct the election or vote with fairness
to
all stockholders.
The
inspectors of election shall perform their duties impartially, in good faith,
to
the best of their ability and as expeditiously as is practical. If there are
three (3) inspectors of election, the decision, act or certificate of a majority
is effective in all respects as the decision, act or certificate of all. Any
report or certificate made by the inspectors of election is prima facie evidence
of the facts stated therein.
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
corporation shall be managed and all corporate powers shall be exercised by
or
under the direction of the Board.
3.2
NUMBER
OF
DIRECTORS.
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
one member. 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 of these bylaws, each director, including a
director elected to fill a vacancy, shall hold office until the expiration
of
the term for which elected and until such director’s successor is elected and
qualified or until such director’s earlier death, resignation or removal.
Directors need not be stockholders unless so required by the certificate of
incorporation or these bylaws. The certificate of incorporation or these bylaws
may prescribe other qualifications for directors.
If
so
provided in the certificate of incorporation, the directors of the corporation
shall be divided into three classes.
3.4
RESIGNATION
AND VACANCIES.
Any
director may resign at any time upon notice given in writing or by electronic
transmission to the corporation. 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,
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.
If
the directors are divided into classes, a person so elected by the directors
then in office to fill a vacancy or newly created directorship shall hold office
until the next election of the class for which such director shall have been
chosen and until his or her successor shall have been duly elected and
qualified.
If
at any
time, by reason of death or resignation or other cause, the corporation should
have no directors in office, then any officer or any stockholder or an executor,
administrator, trustee or guardian of a stockholder, or other fiduciary
entrusted with like responsibility for the person or estate of a stockholder,
may call a special meeting of stockholders in accordance with the provisions
of
the certificate of incorporation or these bylaws, or may apply to the Court
of
Chancery for a decree summarily ordering an election as provided in
Section 211 of the 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 chairperson of the Board, the chief executive officer, the president, the
secretary or a majority of the authorized number of 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 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 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 corporation’s
principal executive office) nor the purpose of the meeting.
3.8
QUORUM.
At
all
meetings of the Board, a majority of the authorized number of 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 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.
3.10
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
REMOVAL
OF DIRECTORS.
Any
director may be removed from office by the stockholders of the corporation
only
for cause.
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
may, by resolution passed by a majority of the authorized number of directors,
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 all the powers and
authority of the Board in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to
all
papers that may require it; but no such committee shall have the power or
authority to (i) approve or adopt, or recommend to the stockholders, any
action or matter expressly required by the DGCL to be submitted to stockholders
for approval, or (ii) adopt, amend or repeal any bylaw of the
corporation,
4.2
COMMITTEE
MINUTES.
Each
committee shall keep regular minutes of its meetings and report the same 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
7.12 (waiver of notice); and
(vi)
Section 3.9
(action without a meeting)
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.
However
:
(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.
ARTICLE
V - OFFICERS
5.1
OFFICERS.
The
officers of the corporation shall be a president and a secretary. The
corporation may also have, at the discretion of the Board, a chairperson of
the
Board, a vice chairperson 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 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 corporation, 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 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.
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 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.
5.6
REPRESENTATION
OF SHARES OF OTHER CORPORATIONS.
The
chairperson of the Board, the president, any vice president, the treasurer,
the
secretary or assistant secretary of this corporation, 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 this corporation all rights incident
to any and all shares of any other corporation or corporations standing in
the
name of this corporation. The authority granted herein may be exercised either
by such person directly or by any other person authorized to do so by proxy
or
power of attorney duly executed by such person having the
authority.
5.7
AUTHORITY
AND DUTIES OF OFFICERS.
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 or the stockholders and, to the extent
not so provided, as generally pertain to their respective offices, subject
to
the control of 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 amended to date, accounting books, and
other records.
Any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during
the
usual hours for business to inspect for any proper purpose the corporation’s
stock ledger, a list of its stockholders, and its other books and records and
to
make copies or extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person’s interest as a stockholder. In every instance
where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney
or
such other writing that authorizes the attorney or other agent so to 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. The Court of Chancery is hereby
vested with the exclusive jurisdiction to determine whether a director is
entitled to the inspection sought. The Court may summarily order the corporation
to permit the director to inspect any and all books and records, the stock
ledger, and the stock list and to make copies or extracts therefrom. The Court
may, in its discretion, prescribe any limitations or conditions with reference
to the inspection, or award such other and further relief as the Court may
deem
just and proper.
ARTICLE
VII - GENERAL MATTERS
7.1
EXECUTION
OF CORPORATE CONTRACTS AND INSTRUMENTS.
The
Board, except as otherwise provided in these bylaws, may authorize any officer
or officers, or agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation; such authority
may
be general or confined to specific instances. Unless so authorized or ratified
by the Board or within the agency power of an officer, no officer, agent or
employee shall have any power or authority to bind the corporation by any
contract or engagement or to pledge its credit or to render it liable for any
purpose or for any amount.
7.2
STOCK
CERTIFICATES; PARTLY PAID SHARES.
The
shares of the corporation shall be represented by certificates or shall be
uncertificated. Certificates of the shares of stock, if any shall be in such
form as is consistent with the Certificate of Incorporation and applicable
law.
Every holder of stock represented by certificates in the corporation 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 chairperson
or
vice-chairperson of the Board, or the president or vice-president, and by the
treasurer
or
an
assistant treasurer, or the secretary or an assistant secretary of such
corporation, certifying the number of shares owned by such holder in the
corporation. Any or all of the signatures on a 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 were such officer,
transfer agent or registrar at the date of issue.
The
corporation may issue the whole or any part of its shares as partly paid and
subject to call for the remainder of the consideration to be paid therefor.
Upon
the face or back of each stock certificate issued to represent any such partly
paid shares, upon the books and records of the corporation in the case of
uncertificated partly paid shares, the total amount of the consideration to
be
paid therefor and the amount paid thereon shall be stated. Upon the declaration
of any dividend on fully paid shares, the corporation shall declare a dividend
upon partly paid shares of the same class, but only upon the basis of the
percentage of the consideration actually paid thereon.
7.3
SPECIAL
DESIGNATION ON CERTIFICATES.
If
the
corporation is authorized to issue more than one class of stock or more than
one
series of any class, then the powers, the designations, the preferences, and
the
relative, participating, optional or other special rights of each class of
stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate, if any, 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, if any, that the corporation shall issue to represent such class
or
series of stock a statement that the corporation will furnish without charge
to
each stockholder who so requests the powers, the designations, the preferences,
and the relative, participating, optional or other special rights of each class
of stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights.
7.4
LOST
CERTIFICATES.
Except
as
provided in this Section 7.4, no new certificates for shares issued, in the
case of stock represented by certificate, 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.
7.5
CONSTRUCTION;
DEFINITIONS.
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.
7.6
DIVIDENDS.
The
Board, subject to any restrictions contained in either (i) the DGCL, or
(ii) the certificate of incorporation, may declare and pay dividends upon
the shares of its capital stock. Dividends may be paid in cash, in property,
or
in shares of the corporation’s capital stock.
The
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.
Such purposes shall include but not be limited to equalizing dividends,
repairing or maintaining any property of the corporation, and meeting
contingencies.
7.7
FISCAL
YEAR.
The
fiscal year of the corporation shall be fixed by resolution of the Board and
may
be changed by the Board.
7.8
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.
7.9
TRANSFER
OF STOCK.
Transfers
of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, and,
in
the case of stock represented by certificate, upon the surrender of a properly
endorsed certificate or certificates for a like number of shares. It shall
be
the duty of the corporation to issue a new certificate, if any, to the person
entitled thereto, cancel the old certificate, if any, and record the transaction
in its books.
7.10
STOCK
TRANSFER AGREEMENTS.
The
corporation shall have power to enter into and perform any agreement with any
number of stockholders of any one or more classes of stock of the corporation
to
restrict the transfer of shares of stock of the corporation of any one or more
classes owned by such stockholders in any manner not prohibited by the
DGCL.
7.11
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 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.
7.12
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
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 of incorporation or these
bylaws, any notice to stockholders given by the corporation 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 corporation. Any such consent shall be deemed revoked
if:
(i)
the
corporation is unable to deliver by electronic transmission two consecutive
notices given by the corporation in accordance with such consent; and
(ii)
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.
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 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 Sections 164, 296, 311,
312
or 324 of the DGCL.
ARTICLE
IX - INDEMNIFICATION
9.1
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
The
corporation 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 corporation 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
corporation or is or was serving at the request of the corporation 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 corporation 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.
9.2
INDEMNIFICATION
OF OTHERS
The
corporation 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 corporation 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 corporation or is or was serving at the
request of the corporation 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.
9.3
PREPAYMENT
OF EXPENSES
The
corporation shall pay the expenses incurred by any officer or director of the
corporation, and may pay the expenses incurred by any employee or agent of
the
corporation, 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 IX or
otherwise.
9.4
DETERMINATION;
CLAIM
If
a
claim for indemnification or payment of expenses under this Article IX is not
paid in full within sixty days after a written claim therefor has been received
by the corporation 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 corporation shall
have the burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
9.5
NON-EXCLUSIVITY
OF RIGHTS
The
rights conferred on any person by this Article IX 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.
9.6
INSURANCE
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
serving at the request of the corporation as a director, officer, employee
or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against 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 corporation would have the power to indemnify him or her
against such liability under the provisions of the DGCL.
9.7
OTHER
INDEMNIFICATION
The
corporation’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.
9.8
AMENDMENT
OR REPEAL
Any
repeal or modification of the foregoing provisions of this Article IX 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
X - AMENDMENTS
These
bylaws may be adopted, amended or repealed by the stockholders entitled to
vote.
However, the corporation may, in its certificate of incorporation, confer the
power to adopt, amend or repeal bylaws upon the directors. The fact that such
power has been so conferred upon the directors shall not divest the stockholders
of the power, nor limit their power to adopt, amend or repeal
bylaws.