| Delaware | 0-20859 | 75-2287752 |
| (State or other jurisdiction | (Commission File Number) | (IRS Employer |
| of incorporation) | Identification No.) |
| [ ] | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| [ ] | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| [ ] | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| [ ] | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| (d) | Exhibits | ||||
| 3.1 | Amended and Restated Bylaws | ||||
| GERON CORPORATION | |||
| Date: | March 19, 2010 | By: | /s/ David L. Greenwood |
| Name: | David L. Greenwood | ||
| Title: | Executive Vice President, Chief Financial Officer | ||
| Section 1. |
The registered
office shall be in the City of Wilmington, County of New Castle, State of
Delaware.
|
|
| Section 2. |
The Corporation
may also have offices at such other places both within and without the
State of Delaware as the Board of Directors may from time to time
determine or the business of the Corporation may
require.
|
| Section 1. |
All meetings of
the stockholders for the election of directors shall be held at such time
and place as may be fixed from time to time by the Board of Directors, and
stated in the notice of the meeting. Meetings of stockholders for any
other purpose may be held at such time and place, within or without the
State of Delaware, as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof. The Board of Directors may, in its
sole discretion, determine that the meeting 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 DGCL.
|
|
| Section 2. |
Annual meetings of
stockholders shall be held on such date and time as shall be designated
from time to time by the Board of Directors and stated in the notice of
the meeting, for the election of directors at such date and time, and to
transact such other business as may properly be brought before the meeting
pursuant to Sections 5 and 6 of this Article II.
|
|
| Section 3. |
Written notice of
all meetings of stockholders stating the place, date and hour of the
meeting. 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
meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given to each stockholder entitled
to vote at such meeting not less than ten (10) nor more than sixty (60)
days before the date of the
meeting.
|
| Section 4. |
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. 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, either
at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified,
at the place where the meeting is to be held. 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.
|
|
| Section 5. |
(a) 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 (i) brought before the
meeting by the Corporation and specified in the notice of meeting given by
or at the direction of the Board of Directors, (ii) brought before the
meeting by or at the direction of the Board of Directors, or (iii)
otherwise properly brought before the meeting by a stockholder who (A) was
a stockholder of record (and, with respect to any beneficial owner, if
different, on whose behalf such business is proposed, only if such
beneficial owner was the beneficial owner of shares of the Corporation)
both at the time of giving the notice provided for in this Section 5 and
at the time of the meeting, (B) is entitled to vote at the meeting, and
(C) has complied with this Section 5 as to such business. Except for
proposals properly made in accordance with Rule 14a-8 under the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(as so amended and inclusive of such rules and regulations, the
“
Exchange Act
”), and included in the notice of
meeting given by or at the direction of the Board of Directors, the
foregoing clause (iii) shall be the exclusive means for a stockholder to
propose business to be brought before an annual meeting of the
stockholders.
Stockholders
shall not be permitted to propose business to be brought before a special
meeting of the stockholders, and the only matters that may be brought
before a special meeting are the matters specified in the notice of
meeting given by or at the direction of the person calling the meeting
pursuant to Section 7 of this Article II. Stockholders seeking to nominate
persons for election to the Board of Directors must comply with Article
II, Section 6 and this Section 5 shall not be applicable to nominations
except as expressly provided in Article II, Section
6.
|
|
(b) Without
qualification, for business to be properly brought before an annual
meeting by a stockholder, the stockholder must (i) provide Timely Notice
(as defined below) thereof in writing and in proper form to the Secretary
of the Corporation and (ii) provide any updates or supplements to such
notice at the times and in the forms required by this Section 5. 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 ninety (90) days nor more than one hundred twenty (120) days prior to
the one(1)-year anniversary of the preceding year’s annual meeting;
provided, however
, that if the date of the annual meeting
is more than thirty (30) days before or more than sixty (60) days after
such anniversary date, notice by the stockholder to be timely must be so
delivered, or mailed and received, not later than the ninetieth (90
th
) day prior to
such annual meeting or, if later, the tenth (10
th
) day following
the day on which public disclosure of the date of such annual meeting was
first made (such notice within such time periods, “
Timely Notice
”). In no event shall any adjournment of
an annual meeting or the announcement thereof commence a new time period
for the giving of Timely Notice as described above.
|
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|
(c) To be in
proper form for purposes of this Section 5, a stockholder’s notice to the
Secretary shall set forth:
|
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| (i) |
As to each
Proposing Person (as defined below), (A) the name and address of such
Proposing Person (including, if applicable, the name and address that
appear on the Corporation’s books and records); and (B) the class or
series and number of shares of the Corporation that are, directly or
indirectly, owned of record or beneficially owned (within the meaning of
Rule 13d-3 under the Exchange Act) by such Proposing Persons, except that
such Proposing Person shall in all events be deemed to beneficially own
any shares of any class or series of the Corporation as to which such
Proposing Person has a right to acquire beneficial ownership at any time
in the future (the disclosures to be made pursuant to the foregoing
clauses (A) and (B) are referred to as “
Stockholder
Information
”);
|
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| (ii) |
As to each
Proposing Person, (A) any derivative, swap or other transaction or series
of transactions engaged in, directly or indirectly, by such Proposing
Person, the purpose or effect of which is to give such Proposing Person
economic risk similar to ownership of shares of any class or series of the
Corporation, including due to the fact that the value of such derivative,
swap or other transactions are determined by reference to the price, value
or volatility of any shares of any class or series of the Corporation, or
which derivative, swap or other transactions provide, directly or
indirectly, the opportunity to profit from any increase in the price or
value of shares of any class or series of the Corporation (“
Synthetic Equity
Interests
”), which Synthetic Equity Interests shall be disclosed
without regard to whether (x) the derivative, swap or other transactions
convey any voting rights in such shares to such Proposing Person, (y) the
derivative, swap or other transactions are required to be, or are capable
of being, settled through delivery of such shares or (z) such Proposing
Person may have entered into other transactions that hedge or mitigate the
economic effect of such derivative, swap or other transactions, (B) any
proxy (other than a revocable proxy or consent given in response to a
solicitation made pursuant to, and in accordance with, Section 14(a) of
the Exchange Act by way of a solicitation statement filed on Schedule
14A), agreement, arrangement, understanding or relationship pursuant to
which such Proposing Person has or shares a right to vote any shares of
any class or series of the Corporation, (C) any agreement, arrangement,
understanding or relationship, including any repurchase or similar
so-called “stock borrowing” agreement or arrangement, engaged in, directly
or indirectly, by such Proposing Person, the purpose or effect of which is
to mitigate loss to, reduce the economic risk (of ownership or otherwise)
of shares of any class or series of the Corporation by, manage the risk of
share price changes for, or increase or decrease the voting power of, such
Proposing Person with respect to the shares of any class or series of the
Corporation, or which provides, directly or indirectly, the opportunity to
profit from any decrease in the price or value of the shares of any class
or series of the Corporation (“
Short
Interests
”),
(D) any rights to dividends on the
shares of any class or series of the Corporation owned beneficially by
such Proposing Person that are separated or separable from the underlying
shares of the Corporation, (E) any performance related fees (other than an
asset based fee) that such Proposing Person is entitled to based on any
increase or decrease in the price or value of shares of any class or
series of the Corporation, or any Synthetic Equity Interests or Short
Interests, if any, and (F) any other information relating to such
Proposing Person that would be required to be disclosed in a proxy
statement or other filing required to be made in connection with
solicitations of proxies or consents by such Proposing Person in support
of the business proposed to be brought before the meeting pursuant to
Section 14(a) of the Exchange Act (the disclosures to be made pursuant to
the foregoing clauses (A) through (F) are referred to as “
Disclosable
Interests
”);
provided
,
however
, that Disclosable Interests shall not
include any such disclosures with respect to the ordinary course business
activities of any broker, dealer, commercial bank, trust company or other
nominee who is a Proposing Person solely as a result of being the
stockholder directed to prepare and submit the notice required by these
Bylaws on behalf of a beneficial owner;
and
|
| (iii) |
As to each item of
business that the stockholder proposes to bring before the annual meeting,
(A) a reasonably brief description of the business desired to be brought
before the annual meeting, the reasons for conducting such business at the
annual meeting and any material interest in such business of each
Proposing Person, (B) the text of the proposal or business (including the
text of any resolutions proposed for consideration), and (C) a reasonably
detailed description of all agreements, arrangements and understandings
(x) between or among any of the Proposing Persons or (y) between or among
any Proposing Person and any other person or entity (including their
names) in connection with the proposal of such business by such
stockholder.
|
||||
|
For purposes of
this Section 5, the term “
Proposing
Person
”
shall mean (i) the stockholder providing
the notice of business proposed to be brought before an annual meeting,
(ii) the beneficial owner or beneficial owners, if different, on whose
behalf the notice of the business proposed to be brought before the annual
meeting is made, and (iii) any affiliate or associate (each within the
meaning of Rule 12b-2 under the Exchange Act for purposes of these Bylaws)
of such stockholder or beneficial owner.
|
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|
(d) A stockholder
providing notice of business proposed to be brought before an annual
meeting shall further update and supplement such notice, if necessary, so
that the information provided or required to be provided in such notice
pursuant to this Section 5 shall be true and correct as of the record date
for the meeting and as of the date that is ten (10) business days prior to
the meeting or any adjournment or postponement thereof, and such update
and supplement shall be delivered to, or mailed and received by, the
Secretary at the principal executive offices of the Corporation not later
than five (5) business days after the record date for the meeting (in the
case of the update and supplement required to be made as of the record
date), and not later than eight (8) business days prior to the date for
the meeting or, if practicable, any adjournment or postponement thereof
(and, if not practicable, on the first practicable date prior to the date
to which the meeting has been adjourned or postponed) (in the case of the
update and supplement required to be made as of ten (10) business days
prior to the meeting or any adjournment or postponement
thereof).
|
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|
(e)
Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at an annual meeting except in accordance with this
Section 5.
The presiding
officer of the meeting shall, if the facts warrant, determine that the
business was not properly brought before the meeting in accordance with
this Section 5, and if he or she should so determine, he or she shall so
declare to the meeting and any such business not properly brought before
the meeting shall not be transacted.
|
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|
(f) This Section 5
is expressly intended to apply to any business proposed to be brought
before an annual meeting of stockholders other than any proposal made
pursuant to Rule 14a-8 under the Exchange Act. In addition to the
requirements of this Section 5 with respect to any business proposed to be
brought before an annual meeting, each Proposing Person shall comply with
all applicable requirements of the Exchange Act with respect to any such
business. Nothing in this Section 5 shall be deemed to affect the rights
of stockholders to request inclusion of proposals in the Corporation’s
proxy statement pursuant to Rule 14a-8 under the Exchange
Act.
|
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|
(g) For purposes
of these Bylaws, “
public
disclosure
”
shall mean disclosure in a press release reported by a national news
service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of
the Exchange Act.
|
||
| Section 6. |
(a) Nominations of
any person for election to the Board of Directors at an annual meeting or
at a special meeting (but only if the election of directors is a matter
specified in the notice of meeting given by or at the direction of the
person calling such special meeting) may be made at such meeting only (i)
by or at the direction of the Board of Directors, including by any
committee or persons appointed by the Board of Directors, or (ii) by a
stockholder who (A) was a stockholder of record (and, with respect to any
beneficial owner, if different, on whose behalf such nomination is
proposed to be made, only if such beneficial owner was the beneficial
owner of shares of the Corporation) both at the time of giving the notice
provided for in this Section 6 and at the time of the meeting, (B) is
entitled to vote at the meeting, and (C) has complied with this Section
6
as to such nomination. The foregoing
clause (ii) shall be the exclusive means for a stockholder to make any
nomination of a person or persons for election to the Board of Directors
at an annual meeting or special meeting.
|
|
|
(b) Without
qualification, for a stockholder to make any nomination of a person or
persons for election to the Board of Directors at an annual meeting, the
stockholder must (i) provide Timely Notice (as defined in Article II,
Section 5) thereof in writing and in proper form to the Secretary of the
Corporation and (ii) provide any updates or supplements to such notice at
the times and in the forms required by this Section 6. Without
qualification, if the election of directors is a matter specified in the
notice of meeting given by or at the direction of the person calling such
special meeting, then for a stockholder to make any nomination of a person
or persons for election to the Board of Directors at a special meeting,
the stockholder must (i) provide timely notice thereof in writing and in
proper form to the Secretary of the Corporation at the principal executive
offices of the Corporation, and (ii) provide any updates or supplements to
such notice at the times and in the forms required by this Section 6. To
be timely, a stockholder’s notice for nominations to be made at a special
meeting must be delivered to, or mailed and received at, the principal
executive offices of the Corporation not earlier than the one hundred
twentieth (120
th
) day prior to
such special meeting and not later than the ninetieth (90
th
) day prior to
such special meeting or, if later, the tenth (10
th
) day following
the day on which public disclosure (as defined in Article II, Section 5)
of the date of such special meeting was first made. In no event shall any
adjournment of an annual meeting or special meeting or the announcement
thereof commence a new time period for the giving of a stockholder’s
notice as described above.
|
|
(c) To be in
proper form for purposes of this Section 6, a stockholder’s notice to the
Secretary shall set forth:
|
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| (i) |
As to each
Nominating Person (as defined below), the
Stockholder Information (as defined in
Article II, Section 5(c)(i), except that for purposes of this Section
6
the term “Nominating Person” shall be
substituted for the term “Proposing Person” in all places it appears in
Article II, Section 6(c)(i));
|
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| (ii) |
As to each
Nominating Person, any Disclosable Interests (as defined in Article II,
Section 5(c)(ii), except that for purposes of this Section 6 the term
“Nominating Person” shall be substituted for the term “Proposing Person”
in all places it appears in Article II, Section 5(c)(ii) and the
disclosure in clause (f) of Section 5(c)(ii) shall be made with respect to
the election of directors at the meeting);
|
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| (iii) |
As to each person
whom a Nominating Person proposes to nominate for election as a director,
(A) all information with respect to such proposed nominee that would be
required to be set forth in a stockholder’s notice pursuant to this
Section 6 if such proposed nominee were a Nominating Person, (B) all
information relating to such proposed nominee that is required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors in a
contested election pursuant to Section 14(a) under the Exchange Act
(including such proposed nominee’s written consent to being named in the
proxy statement as a nominee and to serving as a director if elected), (C)
a description of all direct and indirect compensation and other material
monetary agreements, arrangements and understandings during the past three
years, and any other material relationships, between or among any
Nominating Person, on the one hand, and each proposed nominee, his or her
respective affiliates and associates, on the other hand, including,
without limitation, all information that would be required to be disclosed
pursuant to Item 404 under Regulation S-K if such Nominating Person were
the “registrant” for purposes of such rule and the proposed nominee were a
director or executive officer of such registrant (the disclosures to be
made pursuant to the foregoing clauses (A) through (C) are referred to as
“
Nominee
Information
”); and
|
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| (iv) |
The Corporation
may require any proposed nominee to furnish such other information (A) as
may reasonably be required by the Corporation to determine the eligibility
of such proposed nominee to serve as an independent director of the
Corporation or (B) that could be material to a reasonable stockholder’s
understanding of the independence or lack of independence of such proposed
nominee.
|
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|
For purposes of
this Section 6, the term “
Nominating
Person
” shall
mean (i) the stockholder providing the notice of the nomination proposed
to be made at the meeting, (ii) the beneficial owner or beneficial owners,
if different, on whose behalf the notice of the nomination proposed to be
made at the meeting is made, or (iii) any affiliate or associate of such
stockholder or beneficial
owner.
|
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|
(d) A stockholder
providing notice of any nomination proposed to be made at a meeting shall
further update and supplement such notice, if necessary, so that the
information provided or required to be provided in such notice pursuant to
this Section 6 shall be true and correct as of the record date for the
meeting and as of the date that is ten (10) business days prior to the
meeting or any adjournment or postponement thereof, and such update and
supplement shall be delivered to, or mailed and received by, the Secretary
at the principal executive offices of the Corporation not later than five
(5) business days after the record date for the meeting (in the case of
the update and supplement required to be made as of the record date), and
not later than eight (8) business days prior to the date for the meeting
or, if practicable, any adjournment or postponement thereof (and, if not
practicable, on the first practicable date prior to the date to which the
meeting has been adjourned or postponed) (in the case of the update and
supplement required to be made as of ten (10) business days prior to the
meeting or any adjournment or postponement thereof).
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|
(e)
Notwithstanding anything in these Bylaws to the contrary, no person shall
be eligible for election as a director of the Corporation unless nominated
in accordance with this Section 6. The presiding officer at the meeting
shall, if the facts warrant, determine that a nomination was not properly
made in accordance with this Section 6, and if he or she should so
determine, he or she shall so declare such determination to the meeting
and the defective nomination shall be disregarded.
|
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|
(f) In addition to
the requirements of this Section 6 with respect to any nomination proposed
to be made at a meeting, each Nominating Person shall comply with all
applicable requirements of the Exchange Act with respect to any such
nominations.
|
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| Section 7. |
Special meetings
of the stockholders, for any purpose or purposes, unless otherwise
prescribed by statute or by the certificate of incorporation, may only be
called by (i) the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption), (ii)
the Chairman of the Board or the chief executive officer or president (in
the absence of a chief executive officer) or (iii) at the request in
writing of stockholders owning a majority in amount of the entire capital
stock of the corporation issued and outstanding and entitled to vote,
which request shall state the purpose or purposes of the proposed
meeting.
|
|
| Section 8. |
Written notice of
a special meeting stating the place, date and hour of the meeting and the
purpose or purposes for which the meeting is called, shall be given 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.
|
| Section 9. |
The holders of a
majority of the stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business except as
otherwise provided by statute or by the certificate of incorporation. If,
however, such quorum shall not be present or represented at any meeting of
the stockholders, either (i) the chairperson of the meeting or (ii) the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time. 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 such adjourned meeting at
which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified.
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.
|
|
| Section 10. |
When a quorum is
present at any meeting, (i) a plurality of the votes cast at any meeting
of stockholders for the election of directors shall be sufficient to elect
a director and (ii) the vote of the holders of a majority of the stock
having voting power present in person or represented by proxy shall decide
any other question brought before such meeting, unless the question is one
upon which by express provision of the statutes or of the certificate of
incorporation, a different vote is required, in which case such express
provision shall govern and control the decision of such
question.
|
|
|
Unless otherwise
provided in the certificate of incorporation each stockholder shall at
every meeting of the stockholders be entitled to one (1) vote in person or
by proxy for each share of the capital stock having voting power held by
such stockholder, but no proxy shall be voted on after three (3) years
from its date, unless the proxy provides for a longer
period.
|
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| Section 11. |
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 to dividends 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.
|
|
| Section 12. |
Before any meeting
of stockholders, the Board of Directors shall appoint one (1) or more
inspectors of election to act at the meeting or its adjournment and make a
written report thereof. 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 inspector(s)
shall:
|
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| (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;
|
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| (ii) |
receive votes or
ballots;
|
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| (iii) |
hear and determine
all challenges and questions in any way arising in connection with the
right to vote;
|
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| (iv) |
count and tabulate
all votes;
|
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| (v) |
determine when the
polls shall close;
|
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| (vi) |
determine the
result; and
|
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| (vii) |
do any other acts
that may be proper to conduct the election or vote with fairness to all
stockholders.
|
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|
The inspector(s)
of election shall perform their duties impartially, in good faith, to the
best of their ability and as expeditiously as is practical. Any report or
certificate made by the inspector(s) of election is prima facie evidence
of the facts stated therein.
|
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|
ARTICLE III
DIRECTORS
|
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| Section 1. |
The authorized
number of directors shall be determined from time to time by resolution of
the Board of Directors, provided the Board shall consist of at least five
(5) members. The initial authorized number of directors shall be seven
(7).
No reduction of the
authorized number of directors shall have the effect of removing any
director before that director’s term of office expires. Each director
elected shall hold office until his or her successor is elected and
qualified or until he or she shall resign, become disqualified or
disabled, or be otherwise removed. Directors need not be
stockholders.
|
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| Section 2. |
The directors
shall be divided and elected into three classes designated as Class I,
Class II and Class III, respectively. At the first annual meeting of
stockholders following the adoption of this Article III Section 2, the
term of office of the Class I directors shall expire and Class I directors
shall be elected for a full term of three years. At the second annual
meeting of stockholders following the adoption of this Article III Section
2, the term of office of the Class II directors shall expire and Class II
directors shall be elected for a full term of three years. At the third
annual meeting of stockholders following the adoption of this Article III
Section 2, the term of
office of the Class III directors shall expire and Class III directors
shall be elected for a full term of three years.
At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to
succeed the directors of the class whose terms expire at such annual
meeting.
|
|||
| Section 3. |
Any director may
resign at any time upon notice given in writing or by electronic
transmission to the Corporation. Vacancies and new created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen shall
hold office until the next election of the class for which such directors
have been chosen, and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office,
then an election of directors may be held in the manner provided by
statute. 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 the time of
filling any vacancy or any newly created directorship, the directors then
in office shall constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), the Court of Chancery
may, upon application of any stockholder or stockholders holding at least
ten percent (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.
|
||
| Section 4. |
The business of
the Corporation shall be managed by or under the direction of its Board of
Directors which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the certificate of
incorporation or by these Bylaws directed or required to be exercised or
done by the stockholders.
|
|
| MEETINGS OF THE BOARD OF DIRECTORS | ||
| Section 5. |
The Board of
Directors of the Corporation may hold meetings, both regular and special,
either within or without the State of Delaware.
|
|
| Section 6. |
Regular meetings
of the Board of Directors may be held without notice at such time and at
such place as shall from time to time be determined by the
board.
|
|
| Section 7. |
Special meetings
of the board may be called at any time by the Chairman of the Board of
Directors, the chief executive officer, the president or a majority of the
authorized number of directors on four (4) days’ notice to each director
by mail or twenty-four (24) hours’ notice to each director either
personally, by facsimile or by electronic mail. The notice need not
specify the place of the meeting (if the meeting is to be held at the
Corporation’s principal executive office) or the purpose of the
meeting.
|
|
| Section 8. |
At all meetings of
the board a majority of the total number of authorized directors shall
constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting,
until a quorum shall be 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.
|
|
| Section 9. |
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 of Directors
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 of Directors 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.
|
|
| Section 10. |
Unless otherwise
restricted by the certificate of incorporation or these Bylaws, members of
the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or any
committee, by means of conference telephone or similar 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.
|
|
|
COMMITTEES OF
DIRECTORS
|
||
| Section 11. |
The Board of
Directors may, by resolution passed by a majority of the authorized number
of directors, designate one (1) or more committees, each committee to
consist of one (1) 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 of
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he
or she or they constitute a quorum, may unanimously appoint another member
of the Board of Directors 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 of
Directors, shall have and may exercise all the powers and authority of the
Board of Directors 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 which 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. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted
by the Board of Directors.
|
||
| Section 12. |
Each committee
shall keep regular minutes of its meetings and report the same to the
Board of Directors when
required.
|
|
| Section 13. |
Unless the Board
of Directors otherwise provides, each committee designated by the Board of
Directors may make, alter and repeal rules for the conduct of its
business. In the absence of such rules each committee shall conduct its
business in the same manner as the Board of Directors conducts its
business pursuant to these Bylaws.
|
|||
|
COMPENSATION OF
DIRECTORS
|
||||
| Section 14. |
Unless otherwise
restricted by the certificate of incorporation or these Bylaws, the Board
of Directors shall have the authority to fix the compensation of
directors. The directors may be paid their expenses, if any, of attendance
at each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation
for attending committee meetings.
|
|||
|
REMOVAL OF
DIRECTORS
|
||||
| Section 15. |
Unless otherwise
restricted by the certificate of incorporation or these Bylaws, any
director or the entire Board of Directors may be removed, with or without
cause, by the holders of a majority of shares entitled to vote at an
election of directors.
|
|||
|
ARTICLE IV
NOTICES
|
||||
| Section 1. |
Whenever, under
the provisions of the statutes or of the certificate of incorporation or
of these Bylaws, notice is required to be given to any director or
stockholder, notice shall be deemed given, if by mail, addressed to such
director or stockholder, at his or her address as it appears on the
records of the Corporation, with postage thereon prepaid, and deposited in
the United States mail. Notice to directors may also be given by
electronic transmission.
|
|||
| Section 2. |
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 (2) 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 by the
stockholder.
|
|||
| Section 3. |
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.
|
|||
| Section 4. |
An “electronic
transmission” for purposes of these Bylaws 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.
|
|||
| Section 5. |
Whenever any
notice is required to be given under the provisions of the statutes or of
the certificate of incorporation or of these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent
thereto.
|
|||
|
ARTICLE V
OFFICERS
|
||||
| Section 1. |
The officers of
the Corporation shall be chosen by the Board of Directors and shall be a
president and a secretary. The Board of Directors may elect from among its
members a Chairman of the Board and a Vice Chairman of the Board.
The Board of Directors may
also choose a chief executive officer, a chief financial officer or
treasurer, one (1) or more vice-presidents, one (1) or more assistant
secretaries and one (1) or more assistant treasurers. The Board of
Directors may empower the president or chief executive officer (if the
chief executive officer is an officer other than the president) of the
Corporation to appoint officers other than the chief executive officer,
the president, the chief financial officer or the treasurer. Any number of
offices may be held by the same person, unless the certificate of
incorporation or these Bylaws otherwise
provide.
|
|||
| Section 2. |
The Board of
Directors at its first meeting after each annual meeting of stockholders
shall choose a president and a secretary and may choose a vice president
and a treasurer.
|
|
| Section 3. |
The Board of
Directors may appoint such other officers and agents as it shall deem
necessary who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to
time by the board.
|
|
| Section 4. |
The salaries of
all officers of the Corporation shall be fixed by the Board of Directors.
The salaries of agents of the Corporation shall, unless fixed by the Board
of Directors, be fixed by the president of the
Corporation.
|
|
| Section 5. |
The officers of
the Corporation shall hold office until their successors are chosen and
qualify, or until their earlier resignation or removal. Any officer
elected or appointed by the Board of Directors may be removed at any time
by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the
Board of Directors or as provided in Article V, Section
1.
|
|
|
THE CHAIRMAN OF THE
BOARD
|
||
| Section 6. |
The Chairman of
the Board, if any, shall preside at all meetings of the Board of Directors
and of the stockholders at which he or she shall be present. He or She
shall have and may exercise such powers as are, from time to time,
assigned to him or her by the Board and as may be provided by
law.
|
|
| Section 7. |
In the absence of
the Chairman of the Board, the Vice Chairman of the Board, if any, shall
preside at all meetings of the Board of Directors and of the stockholders
at which he or she shall be present. He or She shall have and may exercise
such powers as are, from time to time, assigned to him or her by the Board
and as may be provided by law.
|
|
|
THE PRESIDENT AND
VICE-PRESIDENT
|
||
| Section 8. |
The president
shall be the chief executive officer of the Corporation unless the Board
of Directors shall have designated the Chairman or another officer as the
chief executive officer of the Corporation. Subject to the provisions of
these
Bylaws and to the
direction of the Board of Directors, and subject to the supervisory powers
of the chief executive officer (if the chief executive officer is an
officer other than the president), and subject to such supervisory powers
and authority as may be given by the Board of Directors to the Chairman of
the Board, and/or to any other officer, the president shall have general
and active management of the business of the Corporation and shall perform
all duties and have all powers that are commonly incident to the office of
president or that are delegated to the president by the Board of
Directors.
|
|
| Section 9. |
The president
shall execute bonds, mortgages and other contracts requiring a seal, under
the seal of the Corporation, except where required or permitted by law to
be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors
to some other officer or agent of the Corporation.
|
|
| Section 10. |
In the absence of
the president or in the event of his or her inability or refusal to act,
the vice-president, if any, (or in the event there be more than one
vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of
their election) shall perform the duties of the president, and when so
acting, shall have all the powers of and be subject to all the
restrictions upon the president. The vice-presidents shall perform such
other duties and have such other powers as the Board of Directors or the
chief executive officer (if the chief executive officer is an officer
other than the president) may from time to time
prescribe.
|
|
|
THE SECRETARY AND ASSISTANT
SECRETARY
|
||
| Section 11. |
The secretary
shall attend all meetings of the Board of Directors and all meetings of
the stockholders and record all the proceedings of the meetings of the
Corporation and of the Board of Directors in a book to be kept for that
purpose and shall perform like duties for the standing committees when
required. He or She shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
Board of Directors or president, under whose supervision he or she shall
be. He or She shall have custody of the corporate seal of the Corporation
and he or she, or an assistant secretary, shall have authority to affix
the same to any instrument requiring it and when so affixed, it may be
attested by his or her signature or by the signature of such assistant
secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by
his or her signature.
|
|
| Section 12. |
The assistant
secretary, or if there be more than one, the assistant secretaries in the
order determined by the Board of Directors (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 his or her 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 the board of
directors may from time to time prescribe.
|
|
|
THE TREASURER AND ASSISTANT
TREASURERS
|
||
| Section 13. |
The treasurer
shall have the custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of
Directors.
|
|
| Section 14. |
The treasurer
shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall
render to the president and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all
his or her transactions as treasurer and of the financial condition of the
Corporation.
|
|
| Section 15. |
If required by the
Board of Directors, the treasurer shall give the Corporation a bond (which
shall be renewed every six (6) years) in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his office and for the restoration
to the Corporation, in case of his or her death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his or her possession or under his or her
control belonging to the Corporation.
|
|
| Section 16. |
The assistant
treasurer, or if there shall be more than one, the assistant treasurers in
the order determined by the Board of Directors (or if there be no such
determination, then in the order of their election) shall, in the absence
of the treasurer or in the event of his or her inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
|
|
|
ARTICLE VI
CERTIFICATE OF
STOCK
|
||
| Section 1. |
Every holder of
stock in the Corporation 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 of Directors, or the president or the chief executive officer
(if the chief executive officer is an officer other than the president) or
a vice-president and the treasurer or an assistant treasurer, or the
secretary or an assistant secretary of the Corporation, certifying the
number of shares owned by such stockholder in the Corporation. The Board
of Directors 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.
|
|
|
Certificates may
be issued for partly paid shares and in such case upon the face or back of
the certificates issued to represent any such partly paid shares, the
total amount of the consideration to be paid therefor, and the amount paid
thereon shall be specified.
|
||
|
If the Corporation
shall be authorized to issue more than one (1) class of stock or more than
one (1) series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series thereof and the qualification, 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 which 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 which 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.
|
||
| Section 2. |
Any of or all the
signatures on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have 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.
|
|
|
LOST
CERTIFICATES
|
||
| Section 3. |
The Board of
Directors may direct a new certificate or certificates of stock or
uncertificated shares to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or
certificates or uncertificated shares, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen or destroyed certificate or certificates,
or his or her legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond in such sum as
it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
|
|
|
TRANSFER OF
STOCK
|
||
| Section 4. |
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 (or by delivery of duly executed
instructions with respect to uncertificated shares), it shall be the duty
of the Corporation to issue a new certificate (or uncertificated shares)
to the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
|
|
|
FIXING RECORD
DATE
|
||
| Section 5. |
In order that the
Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholder 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 of Directors may fix, in advance, a record date, which
shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty days prior to any other
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 of Directors may fix a
new record date for the adjourned meeting.
|
||||
|
REGISTERED
STOCKHOLDERS
|
||||
| Section 6. |
The Corporation
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, and to hold liable for calls and assessments a person
registered on its books as the owner of shares and shall not be bound to
recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the
DGCL.
|
|||
|
ARTICLE VII
GENERAL
PROVISIONS
|
||||
|
DIVIDENDS
|
||||
| Section 1. |
Dividends upon the
capital stock of the Corporation, subject to the provisions of the
certificate of incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the Corporation’s
capital stock, subject to the provisions of the certificate of
incorporation.
|
|||
| Section 2. |
Before payment of
any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from
time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such
other purposes as the directors shall think conducive to the interest of
the Corporation, and the Board of Directors may modify or abolish any such
reserve in the manner in which it was
created.
|
|||
|
CHECKS
|
||
| Section 3. |
All checks or
demands for money and notes of the Corporation shall be signed by such
officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
|
|
|
FISCAL YEAR
|
||
| Section 4. |
The fiscal year of
the Corporation shall be fixed by resolution of the Board of
Directors.
|
|
|
SEAL
|
||
| Section 5. |
The Board of
Directors may adopt a corporate seal having inscribed thereon the name of
the Corporation, the year of its organization and the words “Corporate
Seal, Delaware”. The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
|
|
|
INDEMNIFICATION
|
||
| Section 6. |
The Corporation
shall, to the fullest extent authorized under the laws of the State of
Delaware, as those laws may be amended and supplemented from time to time,
indemnify any director made, or threatened to be made, a party to an
action or proceeding, whether criminal, civil, administrative or
investigative, by reason of being a director or officer of the Corporation
or a predecessor corporation or is or was serving at the request of the
Corporation 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 (a
“
Covered Person
”);
provided, however,
that the Corporation shall indemnify
any such Covered Person seeking indemnity in connection with a proceeding
(or part thereof) initiated by such Covered Person only if such proceeding
(or part thereof) was authorized by the Board of Directors of the
Corporation. The indemnification provided for in this Section 6 shall: (i)
not be deemed exclusive of any other rights to which those indemnified may
be entitled under any bylaw, agreement or vote of stockholders or
disinterested directors or otherwise, both as to action in their official
capacities and as to action in another capacity while holding such office,
(ii) continue as to a person who has ceased to be a Covered Person, and
(iii) inure to the benefit of the heirs, executors and administrators of
such Covered Person. The Corporation's obligation to provide
indemnification under this Section 6 shall be offset to the extent of any
other source of indemnification or any otherwise applicable insurance
coverage under a policy maintained by the Corporation or any other
person.
|
|
|
Expenses incurred
by a Covered Person of the Corporation in defending a civil or criminal
action, suit or proceeding by reason of the fact that he or she is or was
a director or officer of the Corporation (or was serving at the request of
the Corporation 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) shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Covered Person to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation as authorized by relevant sections of the
DGCL;
provided,
however
, that the Corporation shall not be
required to advance any expenses to a Covered Person against whom the
Corporation directly brings a claim, in a proceeding, alleging that such
person has breached his or her duty of loyalty to the Corporation,
committed an act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law, or derived an
improper personal benefit from a transaction.
|
||
|
The Corporation’s
obligation, if any, to indemnify or advance expenses to any Covered 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 or advancement of expenses from such other
corporation, partnership, joint venture, trust, enterprise or non-profit
enterprise.
The foregoing
provisions of this Section 6 shall be deemed to be a contract between the
Corporation and each director who serves in such capacity at any time
while these Bylaws are in effect, and any repeal or modification thereof
shall not affect any rights or obligations then existing with respect to
any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought based in whole or in part
upon any such state of facts.
The Board of
Directors in its discretion shall have power on behalf of the Corporation
to indemnify any person, other than a director, made a party to any
action, suit or proceeding by reason of the fact that he or she, his or
her testator or intestate, is or was an 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.
To assure
indemnification under this Section 6 of all directors, officers and
employees who are determined by the Corporation or otherwise to be or to
have been "fiduciaries" of any employee benefit plan of the Corporation
which may exist from time to time, Section 145 of the DGCL shall, for the
purposes of this Section 6, be interpreted as follows: an "other
enterprise" shall be deemed to include such an employee benefit plan,
including without limitation, any plan of the Corporation which is
governed by the Act of Congress entitled "Employee Retirement Income
Security Act of 1974," as amended from time to time; the Corporation shall
be deemed to have requested a person to serve an employee benefit plan
where the performance by such person of his or her duties to the
Corporation also imposes duties on, or otherwise involves services by,
such person to the plan or participants or beneficiaries of the plan;
excise taxes assessed on a person with respect to an employee benefit plan
pursuant to such Act of Congress shall be deemed "fines."
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
enterprise or non-profit entity 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.
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| Section 1. |
These Bylaws may
be altered, amended or repealed or new bylaws may be adopted by the
stockholders holding at least sixty-six and two-thirds percent (66 2/3%)
of the Corporation’s outstanding voting stock. To the extent provided in
the Corporation’s certificate of incorporation, Board of Directors shall
also have the power to alter, amend, repeal or adopt new bylaws of the
Corporation.
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