AMENDED
AND RESTATED BYLAWS
OF
GENSPERA,
INC.
(Amended
and Restated on January 6, 2010)
BYLAWS
OF GENSPERA, INC.
ARTICLE
I
CORPORATE
OFFICES
1.1 REGISTERED
OFFICE.
The registered office of GenSpera,
Inc. shall be fixed in the corporation’s certificate of incorporation, as the
same may be amended and/or restated from time to time (as so amended and/or
restated, the “
Certificate
”).
1.2 OTHER
OFFICES.
The corporation’s Board of Directors
(the “
Board
”)
may at any time establish other offices at any place or places.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
2.1 PLACE
OF MEETINGS.
Meetings of stockholders shall be
held at any place within or outside the State of Delaware as designated by the
Board. The Board may, in its sole discretion, determine that a meeting of
stockholders shall not be held at any place, but may instead be held solely by
means of remote communication as authorized by Section 211(a)(2) of the Delaware
General Corporation Law (the “
DGCL
”). In the
absence of any such designation or determination, stockholders’ meetings shall
be held at the corporation’s principal executive office.
2.2 ANNUAL
MEETING.
The annual meeting of stockholders
shall be held each year on a date and at a time designated by the
Board. At the annual meeting, directors shall be elected and any
other proper business may be transacted.
2.3 SPECIAL
MEETING.
Unless otherwise required by law or
the Certificate, special meetings of the stockholders may be called at any time,
for any purpose or purposes, only by (i) the Board, (ii) the Chairman of the
Board, (iii) the chief executive officer (or, in the absence of a chief
executive officer, the president) of the corporation, or (iv) holders of more
than twenty percent (20%) of the total voting power of the outstanding shares of
capital stock of the corporation then entitled to vote.
If any person(s) other than the Board
calls a special meeting, the request shall:
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(ii)
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specify
the general nature of the business proposed to be transacted;
and
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(iii)
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be
delivered personally or sent by registered mail or by facsimile
transmission to the secretary of the
corporation.
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Upon receipt of such a request, the
Board shall determine the date, time and place of such special meeting, which
must be scheduled to be held on a date that is within ninety (90) days of
receipt by the secretary of the request therefor, and the secretary of the
corporation shall prepare a proper notice thereof. No business may be transacted
at such special meeting other than the business specified in the notice to
stockholders of such meeting.
2.4 NOTICE
OF STOCKHOLDERS’ MEETINGS.
All notices of meetings of
stockholders shall be sent or otherwise given in accordance with either Section
2.5 or Section 8.1 of these bylaws not less than ten (10) nor more than sixty
(60) days before the date of the meeting to each stockholder entitled to vote at
such meeting, except as otherwise required by applicable law. The notice shall
specify the place, if any, date and hour of the meeting, the means of remote
communication, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. Any previously
scheduled meeting of stockholders may be postponed, and, unless the Certificate
provides otherwise, any special meeting of the stockholders may be cancelled by
resolution duly adopted by a majority of the Board members then in office upon
public notice given prior to the date previously scheduled for such meeting of
stockholders.
Whenever notice is required to be
given, under the DGCL, the Certificate or these bylaws, to any person with whom
communication is unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or
meeting which shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice
had been duly given. In the event that the action taken by the corporation is
such as to require the filing of a certificate with the Secretary of State of
Delaware, the certificate shall state, if such is the fact and if notice is
required, that notice was given to all persons entitled to receive notice except
such persons with whom communication is unlawful.
Whenever notice is required to be
given, under any provision of the DGCL, the Certificate or these bylaws, to any
stockholder to whom (a) notice of two (2) consecutive annual meetings, or (b)
all, and at least two (2) payments (if sent by first-class mail) of dividends or
interest on securities during a twelve (12) month period, have been mailed
addressed to such person at such person’s address as shown on the records of the
corporation and have been returned undeliverable, the giving of such notice to
such person shall not be required. Any action or meeting which shall be taken or
held without notice to such person shall have the same force and effect as if
such notice had been duly given. If any such person shall deliver to the
corporation a written notice setting forth such person’s then current address,
the requirement that notice be given to such person shall be reinstated. In the
event that the action taken by the corporation is such as to require the filing
of a certificate with the Secretary of State of Delaware, the certificate need
not state that notice was not given to persons to whom notice was not required
to be given pursuant to Section 230(b) of the DGCL.
The exception in subsection (a) of
the above paragraph to the requirement that notice be given shall not be
applicable to any notice returned as undeliverable if the notice was given by
electronic transmission.
2.5 MANNER
OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice of any meeting of stockholders
shall be given:
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(i)
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if
mailed, when deposited in the United States mail, postage prepaid,
directed to the stockholder at his or her address as it appears on the
corporation’s records;
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(ii)
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if
electronically transmitted, as provided in Section 8.1 of these bylaws;
or
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(iii)
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otherwise,
when delivered.
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An affidavit of the secretary or an
assistant secretary of the corporation or of the transfer agent or any other
agent of the corporation that the notice has been given shall, in the absence of
fraud, be
prima
facie
evidence of the facts stated therein.
Notice may be waived in accordance
with Section 7.13 of these bylaws.
2.6 QUORUM
Unless otherwise provided in the
Certificate or required by law, stockholders representing a one-third of the
voting power of the issued and outstanding capital stock of the corporation,
present in person or represented by proxy, shall constitute a quorum for the
transaction of business at all meetings of the stockholders. If such quorum is
not present or represented at any meeting of the stockholders, then the chairman
of the meeting, or the stockholders representing a majority of the voting power
of the capital stock at the meeting, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time until a quorum is
present or represented. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted that might have been transacted
at the meeting as originally noticed. The stockholders present at a duly called
meeting at which quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
2.7 ADJOURNED
MEETING; NOTICE
When a meeting is adjourned to
another time or place, unless these bylaws otherwise require, notice need not be
given of the adjourned meeting if the time, place if any thereof, and the means
of remote communications if any by which stockholders and proxy holders may be
deemed to be present in person and vote at such adjourned meeting are announced
at the meeting at which the adjournment is taken. At the continuation of the
adjourned meeting, the corporation may transact any business that might have
been transacted at the original meeting. If the adjournment is for more than
thirty (30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting in accordance with the
provisions of Section 2.4 and 2.5 of these bylaws.
2.8 ADMINISTRATION
OF THE MEETING
Meetings of stockholders shall be
presided over by the chairman of the Board or, in the absence thereof, by such
person as the chairman of the Board shall appoint, or, in the absence thereof or
in the event that the chairman shall fail to make such appointment, any officer
of the corporation elected by the Board. In the absence of the secretary of the
corporation, the secretary of the meeting shall be such person as the chairman
of the meeting appoints.
The Board shall, in advance of any
meeting of stockholders, appoint one (1) or more inspector(s), who may include
individual(s) who serve the corporation in other capacities, including without
limitation as officers, employees or agents, to act at the meeting of
stockholders and make a written report thereof. The Board may designate one (1)
or more persons as alternate inspector(s) to replace any inspector, who fails to
act. If no inspector or alternate has been appointed or is able to act at a
meeting of stockholders, the chairman of the meeting shall appoint one (1) or
more inspector(s) to act at the meeting. Each inspector, before discharging his
or her duties, shall take and sign an oath to faithfully execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector(s) or alternate(s) shall have the duties prescribed
pursuant to Section 231 of the DGCL or other applicable law.
The Board shall be entitled to make
such rules or regulations for the conduct of meetings of stockholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations, if any, the chairman of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and to do all acts
as, in the judgment of such chairman, are necessary, appropriate or convenient
for the proper conduct of the meeting, including without limitation establishing
an agenda of business of the meeting, rules or regulations to maintain order,
restrictions on entry to the meeting after the time fixed for commencement
thereof and the fixing of the date and time of the opening and closing of the
polls for each matter upon which the stockholders will vote at a meeting (and
shall announce such at the meeting).
2.9 VOTING.
The stockholders entitled to vote at
any meeting of stockholders shall be determined in accordance with the
provisions of Section 2.11 of these bylaws, subject to Section 217 (relating to
voting rights of fiduciaries, pledgors and joint owners of stock) and Section
218 (relating to voting trusts and other voting agreements) of the
DGCL.
Except as otherwise provided in the
provisions of Section 213 of the DGCL (relating to the fixing of a date for
determination of stockholders of record) or these bylaws, each stockholder shall
be entitled to that number of votes for each share of capital stock held by such
stockholder as set forth in the Certificate.
In all matters, other than the
election of directors and except as otherwise required by law, the Certificate
or these bylaws, the affirmative vote of a majority of the voting power of the
shares present or represented by proxy at the meeting and entitled to vote on
the subject matter shall be the act of the stockholders. Directors shall be
elected by a plurality of the voting power of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors.
The stockholders of the corporation
shall not have the right to cumulate their votes for the election of directors
of the corporation.
2.10 STOCKHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Unless
otherwise restricted by the certificate of incorporation, any action required or
permitted to be taken at any annual or special meeting of the stockholders may
be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
shall be delivered to the corporation by delivery to its registered office, its
principal place of business, or an officer or agent of the corporation having
custody of the book in which minutes of proceedings of stockholders are
recorded. Delivery made to the corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. Prompt notice of
the taking of the corporate action without a meeting by less than unanimous
written consent shall, to the extent required by law, be given to those
stockholders who have not consented in writing and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by
holders representing a sufficient amount of shares to take the action were
delivered to the corporation.
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
sixty (60) nor less than ten (10) days before the date of such meeting, nor more
than sixty (60) days prior to any other such action.
If the
Board does not fix a record date in accordance with these bylaws and applicable
law:
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(i)
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The
record date for determining stockholders entitled to notice of or to vote
at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if notice is waived,
at the close of business on the day next preceding the day on which the
meeting is held.
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(ii)
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The
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board is
necessary, shall be the first day on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation.
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(iii)
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The
record date for determining stockholders for any other purpose shall be at
the close of business on the day on which the Board adopts the resolution
relating thereto.
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A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board may fix a
new record date for the adjourned meeting.
2.12 PROXIES.
Each stockholder entitled to vote at
a meeting of stockholders may authorize another person or persons to act for
such stockholder by proxy authorized by an instrument in writing or by a
transmission permitted by law and filed with the secretary of the corporation,
but no such proxy shall be voted or acted upon after three (3) years from its
date, unless the proxy provides for a longer period. A stockholder may also
authorize another person or persons to act for him, her or it as proxy in the
manner(s) provided under Section 212(c) of the DGCL or as otherwise provided
under Delaware law. The revocability of a proxy that states on its face that it
is irrevocable shall be governed by the provisions of Section 212 of the
DGCL.
2.13 LIST
OF STOCKHOLDERS ENTITLED TO VOTE.
The
officer who has charge of the stock ledger of the corporation shall prepare and
make, at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. The corporation shall not
be required to include electronic mail addresses or other electronic contact
information on such list. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting for a period of at least ten
(10) days prior to the meeting: (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is
provided with the notice of the meeting, or (ii) during ordinary business hours,
at the corporation’s principal place of business.
In the event that the corporation
determines to make the list available on an electronic network, the corporation
may take reasonable steps to ensure that such information is available only to
stockholders of the corporation. If the meeting is to be held at a place, then
the list shall be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is
present. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting.
2.14 ADVANCE
NOTICE OF STOCKHOLDER BUSINESS
Only such business shall be conducted
as shall have been properly brought before a meeting of the stockholders of the
corporation. To be properly brought before an annual meeting, business must be
(a) specified in the notice of meeting (or any supplement thereto) given by or
at the direction of the Board, (b) otherwise properly brought before the meeting
by or at the direction of the Board, or (c) a proper matter for stockholder
action under the DGCL that has been properly brought before the meeting by a
stockholder (i) who is a stockholder of record on the date of the giving of the
notice provided for in this Section 2.14 and on the record date for the
determination of stockholders entitled to vote at such annual meeting and (ii)
who complies with the notice procedures set forth in this Section 2.14. For such
business to be considered properly brought before the meeting by a stockholder
such stockholder must, in addition to any other applicable requirements, have
given timely notice in proper form of such stockholder’s intent to bring such
business before such meeting. To be timely, such stockholder’s notice must be
delivered to or mailed and received by the secretary of the corporation at the
principal executive offices of the corporation not later than the close of
business on the 90
th
day, nor earlier than the close of business on the 120
th
day, prior to the anniversary date of the immediately
preceding annual meeting; provided, however, that in the event that no annual
meeting was held in the previous year or the annual meeting is called for a date
that is not within thirty (30) days before or after such anniversary date,
notice by the stockholder to be timely must be so received not later than the
close of business on the tenth (10
th
) day
following the day on which such notice of the date of the meeting was mailed or
public disclosure of the date of the meeting was made, whichever occurs
first.
To be in proper form, a stockholder’s
notice to the secretary shall be in writing and shall set forth:
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(a)
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the
name and record address of the stockholder who intends to propose the
business and the class or series and number of shares of capital stock of
the corporation which are owned beneficially or of record by such
stockholder;
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(b)
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a
representation that the stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to introduce the business specified in
the notice;
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(c)
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a
brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual
meeting;
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(d)
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any
material interest of the stockholder in such business;
and
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(e)
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any
other information that is required to be provided by the stockholder
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the “ Exchange Act ”).
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Notwithstanding the foregoing, in
order to include information with respect to a stockholder proposal in the proxy
statement and form of proxy for a stockholder’s meeting, stockholders must
provide notice as required by, and otherwise comply with the requirements of,
the Exchange Act and the regulations promulgated thereunder.
No business shall be conducted at the
annual meeting of stockholders except business brought before the annual meeting
in accordance with the procedures set forth in this Section 2.14. The chairman
of the meeting may refuse to acknowledge the proposal of any business not made
in compliance with the foregoing procedure.
2.15 ADVANCE
NOTICE OF DIRECTOR NOMINATIONS
Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors of the corporation, except as may be otherwise provided in the
Certificate with respect to the right of holders of preferred stock of the
corporation to nominate and elect a specified number of directors. To be
properly brought before an annual meeting of stockholders, or any special
meeting of stockholders called for the purpose of electing directors,
nominations for the election of director must be (a) specified in the notice of
meeting (or any supplement thereto), (b) made by or at the direction of the
Board (or any duly authorized committee thereof) or (c) made by any stockholder
of the corporation (i) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 2.15 and on the record date for the
determination of stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth in this Section
2.15.
In addition to any other applicable
requirements, for a nomination to be made by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the secretary of
the corporation. To be timely, a stockholder’s notice to the secretary must be
delivered to or mailed and received at the principal executive offices of the
corporation, in the case of an annual meeting, in accordance with the provisions
set forth in Section 2.14, and, in the case of a special meeting of stockholders
called for the purpose of electing directors, not later than the close of
business on the tenth (10th) day following the day on which notice of the date
of the special meeting was mailed or public disclosure of the date of the
special meeting was made, whichever first occurs.
To be in proper written form, a
stockholder’s notice to the secretary must set forth:
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(a)
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as
to each person whom the stockholder proposes to nominate for election as a
director (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock of the
corporation which are owned beneficially or of record by the person, (iv)
a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nominations are to be made by the
stockholder, and (v) any other information relating to such person that is
required to be disclosed in solicitations of proxies for elections of
directors, or is otherwise required, in each case pursuant to Regulation
14A under the Exchange Act (including without limitation such person’s
written consent to being named in the proxy statement, if any, as a
nominee and to serving as a director if elected);
and
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(b)
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as
to such stockholder giving notice, the information required to be provided
pursuant to Section 2.14.
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Subject to the rights of any holders
of preferred stock of the corporation, no person shall be eligible for election
as a director of the corporation unless nominated in accordance with the
procedures set forth in this Section 2.15. If the chairman of the meeting
properly determines that a nomination was not made in accordance with the
foregoing procedures, the chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be
disregarded.
ARTICLE
III
DIRECTORS
3.1 POWERS.
Subject to the provisions of the DGCL
and any limitations in the Certificate, the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised by or
under the direction of the Board.
3.2 NUMBER
OF DIRECTORS.
Subject to the rights of the holders
of any series of Preferred Stock to elect directors under specified
circumstances, the authorized number of directors shall be determined from time
to time by resolution of the Board, provided the Board shall consist of at least
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 and
Section 3.13 of these bylaws, directors shall be elected at each annual meeting
of stockholders to hold office until the next annual meeting. Directors need not
be stockholders unless so required by the Certificate or these bylaws. The
Certificate or these bylaws may prescribe other qualifications for directors.
Each director, including a director elected to fill a vacancy, shall hold office
until such director’s successor is elected and qualified or until such
director’s earlier death, resignation or removal.
All elections of directors shall be
by written ballot, unless otherwise provided in the Certificate. If authorized
by the Board, such requirement of a written ballot shall be satisfied by a
ballot submitted by electronic transmission, provided that any such electronic
transmission must be either set forth or be submitted with information from
which it can be determined that the electronic transmission was
authorized.
3.4 RESIGNATION
AND VACANCIES.
Any director may resign at any time
upon written notice or by electronic transmission to the
corporation.
Subject to the rights of the holders
of any series of preferred stock of the corporation then outstanding and unless
the Board otherwise determines, newly created directorships resulting from any
increase in the authorized number of directors, or any vacancies on the Board
resulting from the death, resignation, retirement, disqualification, removal
from office or other cause shall, unless otherwise required by law, be filled by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board, or by a sole remaining director.
When one or more directors resigns and the resignation is effective at a future
date, a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each director so chosen shall hold office as provided in this Section 3.4 in the
filling of other vacancies.
3.5 PLACE
OF MEETINGS; MEETINGS BY TELEPHONE.
The Board may hold meetings, both
regular and special, either within or outside the State of
Delaware.
Unless otherwise restricted by the
Certificate 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 with at least five business days prior notice at such time and at such
place as shall from time to time be determined by the Board.
3.7 SPECIAL
MEETINGS; NOTICE.
Special meetings of the Board for any
purpose or purposes may be called at any time by the chairman of the Board, the
chief executive officer, a president, the secretary or any two directors. The
person(s) authorized to call special meetings of the Board may fix the place and
time of the meeting.
Notice of the time and place of
special meetings shall be:
(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 twenty-four (24) hours before the time of the holding of the
meeting. If the notice is sent by United States mail, it shall be deposited in
the United States mail at least four days before the time of the holding of the
meeting. Any oral notice may be communicated either to the director or to a
person at the office of the director who the person giving notice has reason to
believe will promptly communicate such notice to the director. The notice need
not specify the place of the meeting if the meeting is to be held at the
corporation’s principal executive office nor the purpose of the
meeting.
3.8 QUORUM.
Except as otherwise required by law
or the Certificate, at all meetings of the Board, a majority of the authorized
number of directors (as determined pursuant to Section 3.2 of these bylaws)
shall constitute a quorum for the transaction of business, except to adjourn as
provided in Section 3.11 of these bylaws. The vote of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board, except as may be otherwise specifically provided by statute, the
Certificate or these bylaws.
A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action taken is approved by at least a majority
of the directors present at that meeting.
3.9
WAIVER OF NOTICE
Whenever notice is required to be
given under any provisions of the DGCL, the Certificate or these bylaws, a
written waiver thereof, signed by the person entitled to notice, or a waiver by
electronic transmission by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting solely for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
directors, or members of a committee of directors, need be specified in any
written waiver of notice or any waiver by electronic transmission unless so
required by the Certificate or these bylaws.
3.10 BOARD
ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Unless otherwise restricted by the
Certificate or these bylaws, any action required or permitted to be taken at any
meeting of the Board, or of any committee thereof, may be taken without a
meeting if all members of the Board or committee, as the case may be, consent
thereto in writing or by electronic transmission and the writing or writings or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board or committee. Such filing shall be in paper form if the
minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
3.11 ADJOURNED
MEETING; NOTICE.
If a quorum is not present at any
meeting of the Board, then a majority of the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum is present.
3.12 FEES
AND COMPENSATION OF DIRECTORS.
Unless otherwise restricted by the
Certificate or these bylaws, the Board shall have the authority to fix the
compensation of directors.
3.13 REMOVAL
OF DIRECTORS.
Subject to the rights of the holders
of any series of Preferred Stock then outstanding, any director or the entire
Board may be removed from office at any time, with or without cause, by the
affirmative vote of the holders of at least a majority of the voting power of
the issued and outstanding shares of capital stock of the corporation then
entitled to vote in the election of directors.
3.14 CORPORATE
GOVERNANCE COMPLIANCE.
Without otherwise limiting the powers
of the Board set forth in Section 3.1 and provided that shares of capital stock
of the corporation are listed for trading on either The Nasdaq National Market
(“
NASDAQ
”) or
the New York Stock Exchange (“
NYSE
”), the
corporation shall comply with the corporate governance rules and requirements of
the NASDAQ or the NYSE, as applicable.
ARTICLE
IV
COMMITTEES
4.1 COMMITTEES
OF DIRECTORS.
The Board may designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board or in these
bylaws, shall have and may exercise such lawfully delegable powers and duties as
the Board may confer. Each committee will comply with all applicable provisions
of: the Sarbanes-Oxley Act of 2002, the rules and regulations of the Securities
and Exchange Commission, and the rules and requirements of NASDAQ or NYSE, as
applicable, and will have the right to retain independent legal counsel and
other advisers at the corporation’s expense.
4.2 COMMITTEE
MINUTES.
Each committee shall keep regular
minutes of its meetings and report to the Board when required.
4.3 MEETINGS
AND ACTION OF COMMITTEES.
Meetings and actions of committees
shall be governed by, and held and taken in accordance with, the provisions
of:
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(i)
|
Section
3.5 (place of meetings and meetings by
telephone);
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(ii)
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Section
3.6 (regular meetings);
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(iii)
|
Section
3.7 (special meetings and notice);
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(iv)
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Section
3.8 (quorum);
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(v)
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Section
3.9 (waiver of notice);
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(vi)
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Section
3.10 (action without a meeting);
and
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(vii)
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Section
3.11 (adjournment and notice of
adjournment).
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with such
changes in the context of those bylaws as are necessary to substitute the
committee and its members for the Board and its members.
Notwithstanding the
foregoing:
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(i)
|
the
time of regular meetings of committees may be determined either by
resolution of the Board or by resolution of the
committee;
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(ii)
|
special
meetings of committees may also be called by resolution of the Board;
and
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(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.
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4.4 AUDIT
COMMITTEE
The Board shall establish an Audit
Committee whose principal purpose will be to oversee the corporation’s and its
subsidiaries’ accounting and financial reporting processes, internal systems of
control, independent auditor relationships and audits of consolidated financial
statements of the corporation and its subsidiaries. The Audit Committee will
also determine the appointment of the independent auditors of the corporation
and any change in such appointment and ensure the independence of the
corporation’s auditors. In addition, the Audit Committee will assume such other
duties and responsibilities as the Board may confer upon the committee from time
to time. In the event of any inconsistency between this Section 4.4 and the
Certificate, the terms of the Certificate will govern.
4.5 CORPORATE
GOVERNANCE AND NOMINATING COMMITTEE
The Board shall establish a Corporate
Governance and Nominating Committee whose principal duties will be to assist the
Board by identifying individuals qualified to become Board members consistent
with criteria approved by the Board, to recommend to the Board for its approval
the slate of nominees to be proposed by the Board to the stockholders for
election to the Board, to develop and recommend to the Board the governance
principles applicable to the corporation, as well as such other duties and
responsibilities as the Board may confer upon the committee from time to time.
In the event the Corporate Governance and Nominating Committee will not be
recommending a then incumbent director for inclusion in the slate of nominees to
be proposed by the Board to the stockholders for election to the Board, and
provided such incumbent director has not notified the Committee that he or she
will be resigning or that he or she does not intend to stand for re-election to
the Board, then, in the case of an election to be held at an annual meeting of
stockholders, the Committee will recommend the slate of nominees to the Board at
least thirty (30) days prior to the latest date required by the provisions of
Sections 2.14 and 2.15 of these bylaws for stockholders to submit nominations
for directors at such annual meeting, or in the case of an election to be held
at a special meeting of stockholders, at least ten (10) days prior to the latest
date required by the provisions of Sections 2.14 and 2.15 of these bylaws for
stockholders to submit nominations for directors at such special meeting. In the
event of any inconsistency between this Section 4.5 and the Certificate, the
terms of the Certificate will govern.
4.6 COMPENSATION
COMMITTEE
The Board shall establish a
Compensation Committee whose principal duties will be to review employee
compensation policies and programs as well as the compensation of the chief
executive officer and other executive officers of the corporation, to recommend
to the Board a compensation program for outside Board members, as well as such
other duties and responsibilities as the Board may confer upon the committee
from time to time. In the event of any inconsistency between this Section 4.6
and the Certificate, the terms of the Certificate will govern.
ARTICLE
V
OFFICERS
5.1 OFFICERS.
The
officers of the corporation shall be a chief executive officer, one or more
presidents (at the discretion of the Board), a chairman of the Board and a
secretary. The corporation may also have, at the discretion of the Board, a vice
chairman of the Board, a chief financial officer, a treasurer, one or more vice
presidents, one or more assistant vice presidents, one or more assistant
treasurers, one or more assistant secretaries, and any such other officers as
may be appointed in accordance with the provisions of these bylaws.
Any
number of offices may be held by the same person.
5.2 APPOINTMENT
OF OFFICERS.
The Board
shall appoint the officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Sections 5.3 of these bylaws,
subject to the rights, if any, of an officer under any contract of employment.
Each officer shall hold office until his or her successor is elected and
qualified or until his or her earlier resignation or removal. A failure to elect
officers shall not dissolve or otherwise affect the corporation.
5.3 SUBORDINATE
OFFICERS.
The Board
may appoint, or empower the chief executive officer and/or one or more
presidents of the corporation, to appoint, such other officers and agents as the
business of the corporation may require. Each of such officers and agents shall
hold office for such period, have such authority, and perform such duties as are
provided in these bylaws or as the Board may from time to time
determine.
5.4 REMOVAL
AND RESIGNATION OF OFFICERS.
Any
officer may be removed, either with or without cause, by an affirmative vote of
the majority of the Board at any regular or special meeting of the Board or,
except in the case of an officer appointed by the Board, by any officer upon
whom such power of removal may be conferred by the Board.
Any
officer may resign at any time by giving written notice to the corporation. Any
resignation shall take effect at the date of the receipt of that notice or at
any later time specified in that notice. Unless otherwise specified in the
notice of resignation, the acceptance of the resignation shall not be necessary
to make it effective. Any resignation is without prejudice to the rights, if
any, of the corporation under any contract to which the officer is a
party.
5.5 VACANCIES
IN OFFICES.
Any
vacancy occurring in any office of the corporation shall be filled by the Board
or as provided in Section 5.2.
5.6 CHAIRMAN
OF THE BOARD.
The
chairman of the Board shall be a member of the Board and, if present, preside at
meetings of the Board and exercise and perform such other powers and duties as
may from time to time be assigned to him or her by the Board or as may be
prescribed by these bylaws. The chairman shall be appointed by a
majority of the Board then in office. If there is no chief executive
officer or president of the corporation as a result of the death, resignation or
removal of such officer, then the chairman of the Board may also serve in an
interim capacity as the chief executive officer of the corporation until the
Board shall appoint a new chief executive officer and, while serving in such
interim capacity, shall have the powers and duties prescribed in Section 5.7 of
these bylaws.
5.7 CHIEF
EXECUTIVE OFFICER.
Subject
to the control of the Board and any supervisory powers the Board may give to the
chairman of the Board, the chief executive officer shall, together with the
president or presidents of the corporation, have general supervision, direction,
and control of the business and affairs of the corporation and shall see that
all orders and resolutions of the Board are carried into effect. The chief
executive officer shall, together with the president or presidents of the
corporation, also perform all duties incidental to this office that may be
required by law and all such other duties as are properly required of this
office by the Board of Directors. The chief executive officer shall serve as
chairman of and preside at all meetings of the stockholders. In the absence of
the chairman of the Board, the chief executive officer shall preside at all
meetings of the Board.
5.8 PRESIDENTS.
Subject
to the control of the Board and any supervisory powers the Board may give to the
chairman of the Board, the president or presidents of the corporation shall,
together with the chief executive officer, have general supervision, direction,
and control of the business and affairs of the corporation and shall see that
all orders and resolutions of the Board are carried into effect. A president
shall have such other powers and perform such other duties as from time to time
may be prescribed for him or her by the Board, these bylaws, or the chairman of
the Board.
5.9 VICE
PRESIDENTS.
In the
absence or disability of any president, the vice presidents, if any, in order of
their rank as fixed by the Board or, if not ranked, a vice president designated
by the Board, shall perform all the duties of a president. When acting as a
president, the appropriate vice president shall have all the powers of, and be
subject to all the restrictions upon, that president. The vice presidents shall
have such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board, these bylaws, the chairman of the
Board, the chief executive officer or, in the absence of a chief executive
officer, one of more of the presidents.
5.10 SECRETARY.
The
secretary shall keep or cause to be kept, at the principal executive office of
the corporation or such other place as the Board may direct, a book of minutes
of all meetings and actions of directors, committees of directors, and
stockholders. The minutes shall show:
(i) the
time and place of each meeting;
(ii) whether
regular or special (and, if special, how authorized and the notice
given);
(iii) the
names of those present at directors’ meetings or committee
meetings;
(iv) the
number of shares present or represented at stockholders’ meetings;
and
(v) the
proceedings thereof.
The
secretary shall keep, or cause to be kept, at the principal executive office of
the corporation or at the office of the corporation’s transfer agent or
registrar, as determined by resolution of the Board, a share register, or a
duplicate share register showing:
(i) the
names of all stockholders and their addresses;
(ii) the
number and classes of shares held by each;
(iii) the
number and date of certificates evidencing such shares; and
(iv)
the number and date of cancellation of every
certificate surrendered for cancellation.
The
secretary shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board required to be given by law or by these bylaws.
The secretary shall keep the seal of the corporation, if one be adopted, in safe
custody and shall have such other powers and perform such other duties as may be
prescribed by the Board or by these bylaws.
5.11
CHIEF FINANCIAL OFFICER.
The chief
financial officer shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and
business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings
and shares. The books of account shall at all reasonable times be open to
inspection by any director.
The chief
financial officer shall deposit all moneys and other valuables in the name and
to the credit of the corporation with such depositories as the Board may
designate. The chief financial officer shall disburse the funds of the
corporation as may be ordered by the Board, shall render to the chief executive
officer or, in the absence of a chief executive officer, any president and
directors, whenever they request it, an account of all his or her transactions
as chief financial officer and of the financial condition of the corporation,
and shall have other powers and perform such other duties as may be prescribed
by the Board or these bylaws.
The chief
financial officer may be the treasurer of the corporation.
5.12 TREASURER.
The
treasurer shall keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings and shares.
The books of account shall at all reasonable times be open to inspection by any
director.
The
treasurer shall deposit all moneys and other valuables in the name and to the
credit of the corporation with such depositories as the Board may designate. The
treasurer shall disburse the funds of the corporation as may be ordered by the
Board, shall render to the chief executive officer or, in the absence of a chief
executive officer, one or more of the presidents and directors, whenever they
request it, an account of all his or her transactions as treasurer and of the
financial condition of the corporation, and shall have other powers and perform
such other duties as may be prescribed by the Board or these
bylaws.
5.13 ASSISTANT
SECRETARY.
The
assistant secretary, or, if there is more than one, the assistant secretaries in
the order determined by the Board (or if there be no such determination, then in
the order of their election) shall, in the absence of the secretary or in the
event of the secretary’s inability or refusal to act, perform the duties and
exercise the powers of the secretary and shall perform such other duties and
have such other powers as may be prescribed by the Board or these
bylaws.
5.14 ASSISTANT
TREASURER.
The
assistant treasurer, or, if there is more than one, the assistant treasurers, in
the order determined by the Board (or if there be no such determination, then in
the order of their election), shall, in the absence of the chief financial
officer or treasurer or in the event of the chief financial officer’s or
treasurer’s inability or refusal to act, perform the duties and exercise the
powers of the chief financial officer or treasurer, as applicable, and shall
perform such other duties and have such other powers as may be prescribed by the
Board or these bylaws.
5.15 REPRESENTATION
OF SHARES OF OTHER CORPORATIONS.
The
chairman of the Board, the chief executive officer, any president, any vice
president, the treasurer, the secretary or assistant secretary of this
corporation, or any other person authorized by the Board, the chief executive
officer, a president or a vice president, is authorized to vote, represent, and
exercise on behalf of this corporation all rights incident to any and all shares
or other equity interests of any other corporation or entity standing in the
name of this corporation. The authority granted herein may be exercised either
by such person directly or by any other person authorized to do so by proxy or
power of attorney duly executed by such person having the
authority.
5.16 AUTHORITY
AND DUTIES OF OFFICERS.
In
addition to the foregoing authority and duties, all officers of the corporation
shall respectively have such authority and perform such duties in the management
of the business of the corporation as may be designated from time to time by the
Board. Any officer may hold two or more offices.
ARTICLE
VI
RECORDS
AND REPORTS
6.1 MAINTENANCE
AND INSPECTION OF RECORDS.
The
corporation shall, either at its principal executive office or at such place or
places as designated by the Board, keep a record of its stockholders listing
their names and addresses and the number and class of shares held by each
stockholder, a copy of these bylaws, as may be amended to date, minute books,
accounting books and other records.
Any such
records maintained by the corporation may be kept on, or by means of, or be in
the form of, any information storage device or method, provided that the records
so kept can be converted into clearly legible paper form within a reasonable
time. The corporation shall so convert any records so kept upon the request of
any person entitled to inspect such records pursuant to the provisions of the
DGCL. When records are kept in such manner, a clearly legible paper form
produced from or by means of the information storage device or method shall be
admissible in evidence, and accepted for all other purposes, to the same extent
as an original paper form accurately portrays the record.
Any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the corporation’s
stock ledger, a list of its stockholders, and its other books and records and to
make copies or extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person’s interest as a stockholder. In every instance
where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal executive
office.
6.2 INSPECTION
BY DIRECTORS.
Any director shall have the right to
examine the corporation’s stock ledger, a list of its stockholders, and its
other books and records for a purpose reasonably related to his or her position
as a director.
ARTICLE
VII
GENERAL
MATTERS
7.1 CHECKS;
DRAFTS; EVIDENCES OF INDEBTEDNESS.
From time to time, the Board shall
determine by resolution which person or persons may sign or endorse all checks,
drafts, other orders for payment of money, notes or other evidences of
indebtedness that are issued in the name of or payable to the corporation, and
only the persons so authorized shall sign or endorse those
instruments.
7.2 EXECUTION
OF CORPORATE CONTRACTS AND INSTRUMENTS.
Except as otherwise provided in these
bylaws, the Board, or any officers of the corporation authorized thereby, may
authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific
instances.
7.3 STOCK
CERTIFICATES; PARTLY PAID SHARES.
The shares of the corporation shall
be represented by certificates, provided that the Board may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the Board,
every holder of stock represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate signed by, or
in the name of the corporation by the chairman or vice-chairman of the Board, or
a president or vice-president, and by the treasurer or an assistant treasurer,
or the secretary or an assistant secretary of such corporation representing the
number of shares registered in certificate form. Any or all of the signatures on
the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the corporation with the same
effect as if he or she were such officer, transfer agent or registrar at the
date of issue.
The corporation may issue the whole
or any part of its shares as partly paid and subject to call for the remainder
of the consideration to be paid therefor. Upon the face or back of each stock
certificate issued to represent any such partly paid shares, and upon the books
and records of the corporation in the case of uncertificated partly paid shares,
the total amount of the consideration to be paid therefor and the amount paid
thereon shall be stated. Upon the declaration of any dividend on fully paid
shares, the corporation shall declare a dividend upon partly paid shares of the
same class, but only upon the basis of the percentage of the consideration
actually paid thereon.
7.4 SPECIAL
DESIGNATION ON CERTIFICATES.
If the corporation is authorized to
issue more than one class of stock or more than one series of any class, then
the powers, designations, preferences, and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the certificate
that the corporation shall issue to represent such class or series of stock;
provided
,
however
, that, except
as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing
requirements there may be set forth on the face or back of the certificate that
the corporation shall issue to represent such class or series of stock a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences, and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
7.5 LOST
CERTIFICATES.
Except as provided in this Section
7.6, no new certificates for shares shall be issued to replace a previously
issued certificate unless the latter is surrendered to the corporation and
cancelled at the same time. The corporation may issue a new certificate of stock
or uncertificated shares in the place of any certificate theretofore issued by
it, alleged to have been lost, stolen or destroyed, and the corporation may
require the owner of the lost, stolen or destroyed certificate, or such owner’s
legal representative, to give the corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate or uncertificated shares.
7.6 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.
7.7 DIVIDENDS.
The Board, subject to any
restrictions contained in either (i) the DGCL, or (ii) the Certificate, may
declare and pay dividends upon the shares of its capital stock. Dividends may be
paid in cash, in property, or in shares of the corporation’s capital
stock.
The Board may set apart out of any of
the funds of the corporation available for dividends a reserve or reserves for
any proper purpose and may abolish any such reserve.
7.8 FISCAL
YEAR.
The fiscal year of the corporation
shall be fixed by resolution of the Board and may be changed by the
Board.
7.9 SEAL.
The corporation may adopt a corporate
seal, which shall be adopted and which may be altered by the Board. The
corporation may use the corporate seal by causing it or a facsimile thereof to
be impressed or affixed or in any other manner reproduced.
7.10 TRANSFER
OF STOCK.
Transfers of stock shall be made only
upon the transfer books of the corporation kept at an office of the corporation
or by transfer agents designated to transfer shares of the stock of the
corporation. Except where a certificate is issued in accordance with Section 7.5
of these bylaws, an outstanding certificate for the number of shares involved
shall be surrendered for cancellation before a new certificate is issued
therefore. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction in its
books.
7.11 STOCK
TRANSFER AGREEMENTS.
The
corporation shall have power to enter into and perform any agreement with any
number of stockholders of any one or more classes or series of stock of the
corporation to restrict the transfer of shares of stock of the corporation of
any one or more classes or series owned by such stockholders in any manner not
prohibited by the DGCL.
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7.12
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REGISTERED
STOCKHOLDERS.
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The
corporation:
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(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;
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(ii)
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shall
be entitled to hold liable for calls and assessments on partly paid shares
the person registered on its books as the owner of shares;
and
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(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.
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Whenever
notice is required to be given under any provision of the DGCL, the Certificate
or these bylaws, a written waiver, signed by the person entitled to notice, or a
waiver by electronic transmission by the person entitled to notice, whether
before or after the time of the event for which notice is to be given, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting solely for the express purpose of objecting at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders need be specified in any
written waiver of notice or any waiver by electronic transmission unless so
required by the Certificate or these bylaws.
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7.14
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CHARITABLE
FOUNDATION.
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The
establishment by the corporation of a charitable foundation will require Board
approval, as will contributions by the corporation to the foundation and
disbursements by the foundation. The Board may delegate authority over the
foundation to one or more persons who are not directors of the corporation with
the approval of two-thirds of the members of the Board.
ARTICLE
VIII
NOTICE
BY ELECTRONIC TRANSMISSION
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8.1
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NOTICE
BY ELECTRONIC TRANSMISSION.
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Without
limiting the manner by which notice otherwise may be given effectively to
stockholders pursuant to the DGCL, the Certificate or these bylaws, any notice
to stockholders given by the corporation under any provision of the DGCL, the
Certificate or these bylaws shall be effective if given by a form of electronic
transmission consented to by the stockholder to whom the notice is given. Any
such consent shall be revocable by the stockholder by written notice to the
corporation. Any such consent shall be deemed revoked if:
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(i)
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the
corporation is unable to deliver by electronic transmission two
consecutive notices given by the corporation in accordance with such
consent; and
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(ii)
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such
inability becomes known to the secretary or an assistant secretary of the
corporation or to the transfer agent, or other person responsible for the
giving of notice.
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However,
the inadvertent failure to treat such inability as a revocation shall not
invalidate any meeting or other action.
Any
notice given pursuant to the preceding paragraph shall be deemed
given:
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(i)
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if
by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive
notice;
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(ii)
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if
by electronic mail, when directed to an electronic mail address at which
the stockholder has consented to receive
notice;
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(iii)
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if
by a posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (A) such posting
and (B) the giving of such separate notice;
and
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(iv)
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if
by any other form of electronic transmission, when directed to the
stockholder.
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An
affidavit of the secretary or an assistant secretary or of the transfer agent or
other agent of the corporation that the notice has been given by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
8.2
DEFINITION
OF ELECTRONIC TRANSMISSION.
An
“electronic transmission” means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may be
retained, retrieved, and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an automated
process.
8.3
INAPPLICABILITY.
Notice by
a form of electronic transmission shall not apply to Section 164 (failure to pay
for stock; remedies), Section 296 (adjudication of claims; appeal), Section 311
(revocation of voluntary dissolution), Section 312 (renewal, revival, extension
and restoration of certificate of incorporation) or Section 324 (attachment of
shares of stock) of the DGCL.
ARTICLE
IX
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
9.1 POWER
TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN THE
RIGHT OF THE CORPORATION.
Subject
to Section 9.3 of this Article IX, the corporation shall indemnify, to the
fullest extent permitted by the DGCL, as now or hereafter in effect, any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that such person (or the legal representative
of such person) is or was a director or officer of the corporation or any
predecessor of the corporation, or is or was a director or officer of the
corporation serving at the request of the corporation as a director or officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person’s conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person’s conduct was
unlawful.
9.2 POWER
TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION
Subject
to Section 9.3 of this Article IX, the corporation shall indemnify, to the
fullest extent permitted by the DGCL, as now or hereafter in effect, any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person (or the
legal representative of such person) is or was a director or officer of the
corporation or any predecessor of the corporation, or is or was a director or
officer of the corporation serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys’ fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
9.3 AUTHORIZATION
OF INDEMNIFICATION
Any
indemnification under this Article IX (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case upon a determination
that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct set forth in
Section 9.1 or Section 9.2 of this Article IX, as the case may be. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, or (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion or (iv) by the stockholders (but only if a
majority of the directors who are not parties to such action, suit or
proceeding, if they constitute a quorum of the board of directors, presents the
issue of entitlement to indemnification to the stockholders for their
determination). Such determination shall be made, with respect to former
directors and officers, by any person or persons having the authority to act on
the matter on behalf of the corporation. To the extent, however, that a present
or former director or officer of the corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection therewith, without the necessity of
authorization in the specific case.
9.4 GOOD
FAITH DEFINED
For
purposes of any determination under Section 9.3 of this Article IX, to the
fullest extent permitted by applicable law, a person shall be deemed to have
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe such
person’s conduct was unlawful, if such person’s action is based on the records
or books of account of the corporation or another enterprise, or on information
supplied to such person by the officers of the corporation or another enterprise
in the course of their duties, or on the advice of legal counsel for the
corporation or another enterprise or on information or records given or reports
made to the corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the corporation or another enterprise. The term “another enterprise” as used in
this Section 9.4 shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which such person
is or was serving at the request of the corporation as a director, officer,
employee or agent. The provisions of this Section 9.4 shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth in Section 9.1
or 9.2 of this Article IX, as the case may be.
Notwithstanding
any contrary determination in the specific case under Section 9.3 of this
Article IX, and notwithstanding the absence of any determination thereunder, any
director or officer may apply to the Court of Chancery in the State of Delaware
for indemnification to the extent otherwise permissible under Sections 9.1 and
9.2 of this Article IX. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is
proper in the circumstances because such person has met the applicable standards
of conduct set forth in Section 9.1 or 9.2 of this Article IX, as the case may
be. Neither a contrary determination in the specific case under Section 9.3 of
this Article IX nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice
of any application for indemnification pursuant to this Section 9.5 shall be
given to the corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking indemnification
shall also be entitled to be paid the expense of prosecuting such
application.
To the
fullest extent not prohibited by the DGCL, or by any other applicable law,
expenses incurred by a person who is or was a director or officer in defending
any civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the corporation in advance of the final disposition of such
action, suit or proceeding; provided, however, that if the DGCL requires, an
advance of expenses incurred by any person in his or her capacity as a director
or officer (and not in any other capacity) shall be made only upon receipt of an
undertaking by or on behalf of such person to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the corporation as authorized in this Article IX.
The
indemnification and advancement of expenses provided by or granted pursuant to
this Article IX shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
Certificate, any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person’s official capacity and
as to action in another capacity while holding such office, it being the policy
of the corporation that indemnification of the persons specified in Sections 9.1
and 9.2 of this Article IX shall be made to the fullest extent permitted by law.
The provisions of this Article IX shall not be deemed to preclude the
indemnification of any person who is not specified in Section 9.1 or 9.2 of this
Article IX but whom the corporation has the power or obligation to indemnify
under the provisions of the DGCL, or otherwise. The corporation is specifically
authorized to enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advances, to the
fullest extent not prohibited by the DGCL, or by any other applicable
law.
9.8 INSURANCE
To the
fullest extent permitted by the DGCL or any other applicable law, the
corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation, or is or was a
director, officer, employee or agent of the corporation serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power or the obligation to
indemnify such person against such liability under the provisions of this
Article IX.
9.9 CERTAIN
DEFINITIONS
For
purposes of this Article IX, references to “the corporation” shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors or officers, so that any person who is or was a director
or officer of such constituent corporation, or is or was a director or officer
of such constituent corporation serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
shall stand in the same position under the provisions of this Article IX with
respect to the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had continued.
For purposes of this Article IX, references to “fines” shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to “serving at the request of the corporation” shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner “not opposed to the best
interests of the corporation” as referred to in this Article IX.
9.10 SURVIVAL
OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
The
rights to indemnification and advancement of expenses conferred by this Article
IX shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors, administrators and other
personal and legal representatives of such a person.
9.11 LIMITATION
ON INDEMNIFICATION
Notwithstanding
anything contained in this Article IX to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section 9.5
hereof), the corporation shall not be obligated to indemnify any director or
officer in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or consented to
by the board of directors of the corporation.
The
corporation may, to the extent authorized from time to time by the board of
directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the corporation similar to those conferred in this
Article IX to directors and officers of the corporation.
9.13 EFFECT
OF AMENDMENT OR REPEAL
Neither
any amendment or repeal of any Section of this Article IX, nor the adoption of
any provision of the Certificate or the bylaws inconsistent with this Article
IX, shall adversely affect any right or protection of any director, officer,
employee or other agent established pursuant to this Article IX existing at the
time of such amendment, repeal or adoption of an inconsistent provision,
including without limitation by eliminating or reducing the effect of this
Article IX, for or in respect of any act, omission or other matter occurring, or
any action or proceeding accruing or arising (or that, but for this Article IX,
would accrue or arise), prior to such amendment, repeal or adoption of an
inconsistent provision.
ARTICLE
X
MISCELLANEOUS
10.1 PROVISIONS
OF CERTIFICATE GOVERN
In the
event of any inconsistency between the terms of these bylaws and the
Certificate, the terms of the Certificate will govern.
10.2 AMENDMENT
The
bylaws of the corporation may be adopted, amended or repealed by the
corporation’s Board. The fact that such power has been so conferred upon the
Board shall not divest the stockholders of the power, nor limit their power to
adopt, amend or repeal bylaws. The fact that such power has been so
conferred upon the Board shall not divest the stockholders of the power, nor
limit their power to adopt, amend or repeal bylaws.
* * * * *
GENSPERA,
INC.
a
Delaware corporation
CERTIFICATE
OF ADOPTION OF AMENDED AND RESTATED BYLAWS
The
undersigned hereby certifies that he is the duly elected, qualified, and acting
Chief Executive Officer of GenSpera, Inc., a Delaware corporation and that the
foregoing amended and restated bylaws, comprising twenty three (23) pages, were
adopted as the corporation’s bylaws on January 6, 2010 by the corporation’s
board of directors.
IN
WITNESS WHEREOF, the undersigned has hereunto set his or her hand this 6
th
day of January
2010.
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/s/
Craig Dionne
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Craig
Dionne
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Chief
Executive Officer
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