UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): | June 26, 2014 |
Biolase, Inc.
__________________________________________
(Exact name of registrant as specified in its charter)
Delaware | 000-19627 | 87-0442441 |
_____________________
(State or other jurisdiction |
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(Commission |
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(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
4 Cromwell, Irvine, California | 92618 | |
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(Address of principal executive offices) |
___________
(Zip Code) |
Registrants telephone number, including area code: | 949-361-1200 |
Not Applicable
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] 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))
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On June 26, 2014, the Board of Directors (the "Board") of Biolase, Inc. (the "Company") approved certain amendments to the Company’s bylaws, effective immediately upon approval by the Board. The amendments are reflected in the Sixth Amended and Restated Bylaws of the Company (the "Amended and Restated Bylaws"), a copy of which is attached hereto as Exhibit 3.1. Among other things, the Amended and Restated Bylaws effect changes to the bylaws so as to:
(1) provide that, commencing as of the election of directors at the Company’s 2014 annual meeting of stockholders, the maximum number of directors shall be decreased from nine to five;
(2) modify the indemnification provisions set forth in Article 10, so as to (a) eliminate mandatory indemnification of employees, agents and certain other persons, such that only directors and officers have rights to indemnification under the Amended and Restated Bylaws, (b) eliminate mandatory advancement of expenses for officers, employees, agents and certain other persons, such that only directors have rights to advancement of expenses under the Amended and Restated Bylaws, (c) provide that no director or officer shall have any rights to indemnification under the Amended and Restated Bylaws, and no director shall have any rights to the advancement of expenses under the Amended and Restated Bylaws, in connection with any proceeding (or part thereof) initiated by such director or officer unless such proceeding (or part thereof) was authorized by the Board and (d) provide that any amendment or modification of the indemnification provisions set forth in the Amended and Restated Bylaws shall generally be prospective only (except to the extent such amendment or change in law permits the Company to further limit or eliminate the liability of directors or officers) and shall not adversely affect any right or protection of any director or officer existing at the time of such amendment;
(3) add a new Article 12, (a) specifying Delaware state or federal courts as the exclusive forum for certain types of lawsuits and (b) shifting litigation expenses to the unsuccessful party if such unsuccessful party is a current or former director (or anyone on behalf of any current or former director) (each, a "Claiming Director") who, without prior Board approval, asserts any claim or initiates any proceeding against the Company or any of its directors or officers other than a claim or proceeding initiated by a Claiming Director for which such Claiming Director is entitled to (i) indemnification under Section 10.1 of the Amended and Restated Bylaws or any agreement with the Company or (ii) bring suit under Section 10.1(b) of the Amended and Restated Bylaws; and
(4) remove certain inapplicable provisions such as the references to the now-expired "Leadership Committee."
The above description of the changes effected by the Amended and Restated Bylaws is qualified in its entirety by the full text of the Amended and Restated Bylaws, a copy of which is attached hereto as Exhibit 3.1 and incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
3.1 Sixth Amended and Restated Bylaws of the Company, adopted June 26, 2014.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Biolase, Inc. | ||||
June 30, 2014 | By: |
/s/ Frederick D. Furry
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Name: Frederick D. Furry | ||||
Title: Chief Financial Officer |
Exhibit Index
Exhibit No.
Description
Sixth Amended and Restated Bylaws of Biolase, Inc., adopted June 26, 2014.
BIOLASE, INC.
SIXTH AMENDED AND RESTATED BYLAWS
ARTICLE 1
Section 1.1
Registered Office
.
The registered office of Biolase, Inc. (the Corporation) in the State of Delaware shall be
located at the principal place of business in that state of the corporation or individual acting as
the Corporations registered agent in the State of Delaware.
Section 1.2
Principal Executive Office
.
The principal executive office of the Corporation for the transaction of the business of the
Corporation shall be at such place as may be established by the Board of Directors (the Board).
The Board is granted full power and authority to change said principal executive office from one
location to another.
Section 1.3
Other Offices
.
The Corporation may have other offices, either within or without the State of Delaware, at
such place or places as the Board from time to time may designate or the business of the
Corporation may require.
ARTICLE 2
Section 2.1
Date, Time and Place
.
Meetings of stockholders of the Corporation shall be held on such date and at such time and
place, either within or without the State of Delaware, as shall be designated by the Board and
stated in the written notice of the meeting or in a duly executed written waiver of notice of the
meeting.
Section 2.2
Annual Meetings
.
Annual meetings of stockholders for the election of directors to the Board and for the
transaction of such other business as may be permitted by Section 2.11 shall be held on such date
and at such time and place, either within or without the State of Delaware, as shall be designated
by the Board and stated in the written notice of the meeting or in a duly executed written waiver
of notice of the meeting.
Section 2.3
Special Meetings
.
(a) Special meetings of stockholders for any purpose or purposes, unless otherwise prescribed
by the General Corporation Law of the State of Delaware, the Certificate of Incorporation or these
Bylaws, may be called by the Board, the Chairman, the Executive Vice Chairman, the Chief Executive
Officer (CEO) or the President. The place, date and time of a special meeting called pursuant to
this Section 2.3(a) shall be fixed by the Board or the officer calling the meeting and shall be
stated in the written notice of such meeting, which notice shall state the purpose or purposes for
which the meeting is called. Business transacted at a special meeting shall be confined to the
purpose or purposes stated in the written notice of meeting and matters germane thereto.
(b) Special meetings of stockholders shall be called by the Board or the Secretary at the
written request in accordance with this Section 2.3(b) of stockholders holding a majority of the
aggregate number of shares of the capital stock of the Corporation issued and outstanding and
entitled to vote at such meeting.
(i) No stockholder may demand that the Secretary of the Corporation call a special
meeting of the stockholders unless a stockholder of record has first submitted a request in
writing that the Board fix a record date for the purpose of determining the stockholders
entitled to demand that the Secretary call such special meeting, which request shall be in
proper form and delivered to the Secretary at the principal executive offices of the
Corporation.
(ii) To be in proper form for purposes of this Section 2.3(b), a request by a
stockholder for the Board to fix a record date shall set forth:
(A) as to each stockholder requesting to fix a record date for the purpose of
determining the stockholders entitled to demand that the Secretary call a special
meeting, the beneficial owner, if any, on whose behalf such request is made and any
affiliate or associate of such stockholder or such beneficial owner, the information
required by paragraph (iii)(A) of Section 2.11(a) below;
(B) as to the purpose of the special meeting, (i) a reasonably brief
description of the purpose of the special meeting and the business proposed to be
conducted at the special meeting, the reasons for conducting such business at the
special meeting and any material interest in such business of each stockholder and
beneficial owner, if any, and (ii) a reasonably detailed description of all
agreements, arrangements and understandings (x) between or among the stockholder and
any beneficial owner, or (y) between or among the stockholder or beneficial owner,
if any, on the one hand, and any other person or entity (including their names) in
connection with the request for the special meeting or the business proposed to be
conducted at the special meeting on the other hand.
(iii) Within 10 days after receipt of a request to fix a record date in proper form and
otherwise in compliance with this Section 2.3(b) from any stockholder of record, the Board
may adopt a resolution fixing a record date for the purpose of determining the stockholders
entitled to demand that the Secretary call a special meeting, which date shall not precede
the date upon which the resolution fixing the record date is adopted by the Board. If no
resolution fixing a record date has been adopted by the Board within the 10 day period after
the date on which such a request to fix a record date was received, the record date in
respect thereof shall be deemed to be the 20th day after the date on which such a request is
received. Notwithstanding anything in this Section 2.3(b) to the contrary, no record date
shall be fixed if the Board determines that the demand or demands that would otherwise be
submitted following such record date could not comply with the requirements set forth in
clauses (B), (D), (E) or (F) of Section 2.3(b)(v).
(iv) Without qualification, a special meeting of the stockholders shall not be called
pursuant to Section 2.3(b) unless stockholders of record as of the record date fixed in
accordance with Section 2.3(b)(iii) who hold a majority of the aggregate number of shares of
the capital stock of the Corporation issued and outstanding and entitled to vote at such
meeting (the Requisite Percentage) timely provide one or more demands to call such special
meeting in writing and in proper form to the Secretary at the principal executive offices of
the Corporation. Only stockholders of record on the record date shall be entitled to demand
that the Secretary call a special meeting of the stockholders pursuant to Section 2.3(b). To
be timely, a stockholders demand to call a special meeting must be delivered to, or mailed
and received at, the principal executive offices of the Corporation not later than the 60th
day following the record date fixed in accordance with Section 2.3(b)(iii). To be in proper
form for purposes of this Section 2.3(b), a demand to call a special meeting shall set forth
(A) the business proposed to be conducted at the special meeting, (B) the text of the
proposal or business (including the text of any resolutions proposed for consideration), and
(C) with respect to any stockholder or stockholders submitting a demand to call a special
meeting (except for any stockholder that has provided such demand in response to a
solicitation made pursuant to, and in accordance with, Section 14(a) of 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) by way of a solicitation
statement filed on Schedule 14A) (a Solicited Stockholder) the information required to be
provided pursuant to clause (ii) of Section 2.3(b). A stockholder may revoke a demand to
call a special meeting by written revocation delivered to the Secretary at any time prior to
the special meeting. If any such revocation(s) are received by the Secretary after the
Secretarys receipt of written demands from the holders of the Requisite Percentage of
stockholders, and as a result of such revocation(s), there no longer are unrevoked demands
from the Requisite Percentage of stockholders to call a special meeting, the Board shall
have the discretion to determine whether or not to proceed with the special meeting.
(v) The Secretary shall not accept, and shall consider ineffective, a written demand
from a stockholder to call a special meeting (A) that does not comply with this Section
2.3(b), (B) that relates to an item of business to be transacted at such meeting that is not
a proper subject for stockholder action under applicable law, (C) that includes an item of
business to be transacted at such meeting that did not appear on the written request that
resulted in the determination of the record date (the Current Record Date) to determine
the stockholders entitled to submit such written demand, (D) that relates to an item of
business (other than the election of directors) that is identical or substantially similar
to an item of business (a Similar Item) for which a record date (other than the Current
Record Date) was previously fixed and such demand is delivered between the time beginning on
the 61st day after such previous record date and ending on the one-year anniversary of such
previous record date, (E) if a Similar Item will be submitted for stockholder approval at
any stockholder meeting to be held on or before the 90th day after the Secretary receives
such demand, or (F) if a Similar Item has been presented at the most recent annual meeting
or at any special meeting held within one year prior to receipt by the Secretary of such
demand to call a special meeting.
(vi) After receipt of demands in proper form and in accordance with this Section 2.3(b)
from a stockholder or stockholders holding the Requisite Percentage, the Board shall duly
call, and determine the place, date and time of, a special meeting of stockholders for the
purpose or purposes and to conduct the business specified in the demands received by the
Corporation. Notwithstanding anything in these Bylaws to the contrary, the Board may submit
its own proposal or proposals for consideration at such a special meeting. The record date
for such a special meeting shall be fixed in accordance with Section 9.1 of these Bylaws.
The Board of Directors shall provide written notice of such special meeting to the
stockholders in accordance with Section 2.4.
(vii) In connection with a special meeting called in accordance with this Section
2.3(b), the stockholder or stockholders (except for any Solicited Stockholder) who requested
that the Board fix a record date in accordance with this Section 2.3(b) or who delivered a
demand to call a special meeting to the Secretary shall further update and supplement the
information previously provided to the Corporation in connection with such request or
demand, if necessary, so that the information provided or required to be provided in such
request or demand pursuant to this Section 2.3(b) shall be true and correct as of the record
date for the special 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 special
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, if
practicable (or, if not practicable, the first practicable date prior to) any adjournment or
postponement thereof (in the case of the update and supplement required to be made as of ten
(10) business days prior to the special meeting or any adjournment or postponement thereof).
(viii) Notwithstanding anything in these Bylaws to the contrary, the Secretary shall
not be required to call a special meeting pursuant to this Section 2.3(b) except in
accordance with this Section 2.3(b). If the Board shall determine that any request to fix a
record date or demand to call and hold a special meeting was not properly made in accordance
with this Section 2.3(b), or shall determine that the stockholder or stockholders requesting
that the Board fix such record date or submitting a demand to call the special meeting have
not otherwise complied with this Section 2.3(b), then the Board of Directors shall not be
required to fix a record date or to call and hold the special meeting. In addition to the
requirements of this Section 2.3(b), each stockholder requesting a record date shall comply
with all requirements of applicable law, including all requirements of the Exchange Act,
with respect to any request to fix a record date or demand to call a special meeting.
Section 2.4
Notice of Meetings
.
Written notice of the place, date and time of, and the general nature of the business to be
transacted at a meeting of stockholders shall be given to each stockholder of record entitled to
vote at such meeting, in the manner prescribed by Section 6.1 of these Bylaws, not less than ten
(10) nor more than sixty (60) days prior to the date of the meeting.
Section 2.5
Stockholder List
.
The Secretary or other officer in charge of the stock ledger of the Corporation shall prepare
and make, at least ten (10) days prior to a meeting of stockholders, a complete list of
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares of stock of the Corporation registered in the
name of each stockholder. Such list shall be open to examination by any stockholder, for any
purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the meeting, 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. The list also shall be produced and kept at the place and time of the
meeting during the whole time thereof, and may be inspected by any stockholder who is present.
Section 2.6
Voting Rights
.
In order that the Corporation may determine the stockholders entitled to notice of, and to
vote at, a meeting of stockholders or at any adjournment(s) thereof or to express consent or
dissent to corporate action in writing without a meeting, the Board may fix a record date in the
manner prescribed by Section 9.1 of these Bylaws. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such stockholder by proxy in the manner prescribed
by Section 2.7 of these Bylaws. Except as specifically provided otherwise by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation, or these Bylaws, each
holder of capital stock entitled to vote at a meeting of stockholders or to express consent or
dissent to corporate action in writing without a meeting shall be entitled to one vote for each
share of such stock registered in such stockholders name on the books and records of the
Corporation as of the record date.
Section 2.7
Proxies
.
Each proxy shall be in writing and shall be executed by the stockholder giving the proxy or by
such stockholders duly authorized attorney. No proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy expressly provides for a longer period, Unless and until
voted, every proxy shall be revocable at the pleasure of the person who executed it or of his or
her legal representative or assigns, except in those cases where an irrevocable proxy permitted by
the General Corporation Law of the State of Delaware shall have been given.
Section 2.8
Quorum and Adjournment(s) of Meetings
.
Except as specifically provided otherwise by the General Corporation Law of the State of
Delaware, the Certificate of Incorporation, or these Bylaws, a majority of the aggregate number of
shares of each class of capital stock issued and outstanding and entitled to vote, present in
person or represented by proxy, shall constitute a quorum for the transaction of business at a
meeting of stockholders. If such majority shall not be present in person or represented by proxy at
a meeting of stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have the power to adjourn the meeting from time to time until holders
of the requisite number of shares of stock entitled to vote at the meeting shall be present in
person or represented by proxy. When a meeting of stockholders is adjourned to another place, date
or time, notice need not be given of the adjourned meeting if the place, date, and time of such
adjourned meeting are announced at the meeting at which the adjournment is taken. At any such
adjourned meeting at which a quorum shall be present in person or represented by proxy,
stockholders may transact any business that might have been transacted at the meeting as originally
noticed, but only those stockholders entitled to vote at the meeting as originally noticed shall be
entitled to vote at any adjournment(s) thereof. 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 2.9
Required Vote
.
(a) Except as otherwise required by the General Corporation Law of the State of Delaware, the
Certificate of Incorporation, or these Bylaws, the affirmative vote of a majority of the shares of
each class of capital stock present in person or represented by proxy at a meeting of stockholders
at which a quorum is present and entitled to vote, on the subject matter shall be the act of the
stockholders with respect-to the matter voted upon; provided, however, that directors shall be
elected in the manner provided in paragraphs (b) through (d) of this Section 2.9.
(b) Each director to be elected by the stockholders of the Corporation shall be elected by the
affirmative vote of a majority of the votes cast with respect to such director by the shares
represented and entitled to vote therefor at a meeting of the stockholders for the election of
directors at which a quorum is present (an Election Meeting); provided, however, that if as of
the record date for such Election Meeting the number of nominees exceeds the number of directors to
be elected at such meeting (a Contested Election), each of the directors to be elected at the
Election Meeting shall be elected by the affirmative vote of a plurality of the votes cast by the
shares represented and entitled to vote at such meeting with respect to the election of such
director. For purposes of this Section 2.9, a majority of the votes cast means that the number of
votes cast for a candidate for director exceeds the number of votes cast against that director.
In an election other than a Contested Election, stockholders will be given the choice to cast votes
for or against the election of directors or to abstain from such vote and shall not have the
ability to cast any other vote with respect to such election of directors. In a Contested Election,
stockholders will be given the choice to cast a vote for or to withhold voting authority in the
election of directors and shall not have the ability to cast any other vote with respect to such
election of directors. In the event an Election Meeting involves the election of directors by
separate votes by class or classes or series, the determination as to whether an election
constitutes a Contested Election shall be made on a class by class or series by series basis, as
applicable.
(c) In the event one or more incumbent directors (each, a Subject Director) fails to receive
the affirmative vote of a majority of the votes cast at an Election Meeting at which there was no
Contested Election, either (i) the Nominating and Governance Committee or (ii) if one or more of
the members of the Nominating and Governance Committee is a Subject Director or the Board
determines that any decision to be made with respect to a Subject Director should be made by a
committee other than the Nominating and Governance Committee, a committee consisting solely of
independent directors (as determined in accordance with applicable Nasdaq rules and listing
requirements) who are not Subject Directors (the committee described in clause (i) or (ii) of this
sentence, the Committee) will make a determination as to whether to accept or reject any
previously tendered Resignation (as defined below), or whether other action should be taken
(including whether to request that a Subject Director resign from the Board if no Resignation had
been tendered prior to the relevant Election Meeting); provided, however, that if all nominees fail
to receive the affirmative vote of a majority of the votes cast at an Election Meeting at which
there was no Contested Election, the Committee shall consist of the incumbent independent directors
(as determined in accordance with applicable Nasdaq rules and listing requirements). The Committee
shall accept the Subject Directors Resignation absent a compelling reason (as determined
consistent with the Boards fiduciary duties) for the Subject Director to remain on the Board. The
Committee will act in this regard with respect to any Subject Director within ninety (90) days from
the date of the certification of the Election Meetings election results and shall notify each
Subject Director of its decision. Subject Directors shall be disqualified from participating in the
deliberation or decision(s) of the Committee. The Corporation shall publicly disclose the
decision(s) of the Committee (including the circumstances surrounding any compelling reason for
rejecting a Subject Directors resignation, if applicable) in a filing with the Securities and
Exchange Commission of a Current Report on Form 8-K. Notwithstanding the foregoing, if the result
of accepting all Resignations from Subject Directors (whether tendered in advance of or after the
relevant Election Meeting) would be that the Corporation would have fewer than three directors who
were in office before the most recent Election Meeting, the Committee may determine to extend such
90-day period by an additional ninety (90) days if it determines that such an extension is in the
best interests of the Corporation and its stockholders. For purposes of this Section 2.9, a
Resignation is an irrevocable resignation submitted by an incumbent director nominated for
re-election prior to the relevant Election Meeting that will become effective upon the occurrence
of both (i) the failure to receive the affirmative vote of a majority of the votes cast at an
Election Meeting at which there was no Contested Election and (ii) acceptance of such resignation
by the Committee.
(d) If a Subject Directors tendered Resignation is not accepted by the Committee or such
Subject Director does not otherwise submit his or her resignation to the Board, such director shall
continue to serve until his or her successor is duly elected, or his or her earlier resignation or
removal. If a Subject Directors resignation is accepted by the Committee pursuant to this Section
2.9, or if a nominee for director is not elected and the nominee is not an incumbent director, then
the Board, in its sole discretion, may fill any resulting vacancy or decrease the size of the Board
pursuant to the provisions of Sections 3.2 and 3.4 of these Bylaws.
Section 2.10
Action Without Meeting
.
(a) Notwithstanding contrary provisions of these Bylaws covering notices and meetings, any
action required or permitted to be taken at an annual or special meeting of stockholders may be
taken by stockholders without a meeting, without prior notice, and without a vote if a consent in
writing, setting forth the action so taken, (i) shall be signed by the holders of record on the
record date (established as provided below) of shares of capital stock issued and outstanding and
entitled to vote on the subject matter having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting of stockholders at which all shares of
stock entitled to vote thereon were present and voted and (ii) shall be delivered to the Secretary
of the Corporation at its principal place of business. Every written consent shall bear the date of
the signature of each stockholder who signs the consent, and no written consent shall be effective
to take corporate action unless, within 60 days of the earliest dated valid consent delivered in
the manner described in this section 2.10, written consents signed by a sufficient number of
holders to take such action are delivered to the Corporation in the manner described in this
section 2.10. Only stockholders of record on the record date shall be entitled to consent to
corporate action in writing without a meeting. Prompt notice of the taking of corporate or other
action by stockholders without a meeting by less than unanimous written consent of stockholders
shall be given to those stockholders who have not consented in writing.
(b) Any stockholder of record seeking to have the stockholders authorize or take any action by
written consent shall first request in writing that the Board fix a record date for the purpose of
determining the stockholders entitled to take such action, which request shall be in proper form
and delivered to the Secretary of the Corporation at the principal executive offices of the
Corporation. Within 10 days after receipt of a request in proper form and otherwise in compliance
with this Section 2.10(b) from any such stockholder, the Board may adopt a resolution fixing a
record date for the purpose of determining the stockholders entitled to take such action, which
date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board, and which date shall not be more than 10 days after the date upon which the resolution
fixing the record date is adopted by the Board. If no resolution fixing a record date has been
adopted by the Board within such 10 day period after the date on which such a request is received,
(i) the record date for determining stockholders entitled to consent to such action, when no prior
action of the Board is required by applicable law, shall be the first date on which a valid signed
written consent setting forth the action taken or proposed to be taken is delivered to the
Corporation in the manner described in this Section 2.10, and (ii) the record date for determining
stockholders entitled to consent to such action, when prior action by the Board is required by
applicable law, shall be at the close of business on the date on which the Board adopts the
resolution taking such prior action.
(c) To be in proper form for purposes of this Section 2.10, a request by a stockholder for the
Board to fix a record date shall set forth:
(i) as to each the stockholder requesting to fix a record date and proposing the action
to be taken by written consent, the beneficial owner, if any, on whose behalf such request
is made and any affiliate or associate of such stockholder or such beneficial owner, the
information required by paragraph (iii)(A) of Section 2.11(a) below;
(ii) as to the action proposed to be taken by written consent, (A) a reasonably brief
description of the action, the reasons for taking such action and any material interest in
such action of each stockholder or beneficial owner, (B) the text of the resolutions or
consent proposed to be acted upon by written consent of the stockholders, and (C) a
reasonably detailed description of all agreements, arrangements and understandings (x)
between or among the stockholder and beneficial owner and (y) between or among the
stockholder and beneficial owner on the one hand and any other person or entity (including
their names) in connection with the request or such action on the other hand.
(d) In connection with an action proposed to be taken by written consent in accordance with
this Section 2.10, the stockholder or stockholders seeking such action shall further update and
supplement the information previously provided to the Corporation in connection therewith, if
necessary, so that the information provided or required to be provided pursuant to this Section
2.10 shall be true and correct as of the record date for determining the stockholders eligible to
take such action and as of the date that is five (5) business days prior to the date the consent
solicitation is commenced, and such update and supplement shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than five (5) business days after the
record date for determining the stockholders eligible to take such action (in the case of the
update and supplement required to be made as of the record date), and not later than three (3)
business days prior to the date that the consent solicitation is commenced (in the case of the
update and supplement required to be made as of five (5) business days prior to the commencement of
the consent solicitation).
(e) Notwithstanding anything in these Bylaws to the contrary, no action may be taken by the
stockholders by written consent except in accordance with this Section 2.10. If the Board shall
determine that any request to fix a record date or to take stockholder action by written consent
was not properly made in accordance with this Section 2.10, or the stockholder or stockholders
seeking to take such action do not otherwise comply with this Section 2.10, then the Board shall
not be required to fix a record date and any such purported action by written consent shall be null
and void to the fullest extent permitted by applicable law. In addition to the requirements of this
Section 2.10 with respect to stockholders seeking to take an action by written consent, each
stockholder making a request for the Board to fix a record date and proposing the action to be
taken by written consent and beneficial owner, on whose behalf such request is made, shall comply
with all requirements of applicable law, including all requirements of the Exchange Act, with
respect to such action.
Section 2.11
Advance Notice of Business and Nominations to be Brought Before a
Meeting
.
(a)
Notice of Business to be Brought Before a Meeting
.
(i) At an annual meeting of stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought before an annual
meeting, business must be (A) brought before the meeting pursuant to the Corporations
notice of meeting (or any supplement thereto), (B) brought before the meeting by or at the
direction of the Board, or (C) otherwise properly brought before the meeting by any
stockholder of the Corporation who (i) 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 the
notice provided for in this Section 2.11 is delivered to the Secretary of the Corporation
and at the time of the meeting, (ii) is entitled to vote at the meeting and (iii) who
complies with the notice procedures set forth in this Section 2.11. Except for proposals
properly made in accordance with Rule 14a-8 under the Exchange Act, and included in the
notice of meeting given by or at the direction of the Board, the foregoing clause (C) shall
be the exclusive means for a stockholder to propose business to be brought before an annual
meeting of the stockholders. Stockholders seeking to nominate persons for election to the
Board must comply with Section 2.11(b) and this paragraph (i) of Section 2.11(a) shall not
be applicable to nominations except as expressly provided in Section 2.11(b).
(ii) For business to be properly brought before an annual meeting by a stockholder
pursuant to this Section 2.11, the stockholder must provide (i) timely notice thereof in
writing to the Secretary of the Corporation and (ii) any updates or supplements to such
notice at the times and in the forms required by this Section 2.11(a). To be timely, a
stockholders notice shall be delivered to the Secretary at the principal place of business
of the Corporation not earlier than the close of business on the 120th day, nor later than
the close of business on the 90th day prior to the first anniversary of the preceding years
annual meeting (provided, however, that in the event that the date of the annual meeting is
more than 30 days before or more than 60 days after such anniversary date, notice by the
stockholder must be delivered not later than the close of business on the later of the 90th
day prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the Corporation). In no event
shall any adjournment or postponement of an annual meeting or the announcement thereof
commence a new time period (or extend any time period) for the giving of a stockholders
notice as described above.
(iii) To be in proper form for purposes of this Section 2.11(a), such stockholders
notice shall set forth:
(A) as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the proposal is made (i) the name and address of such person, as
they appear on the Corporations books, (ii) the class or series and number of
shares of the Corporation which are, directly or indirectly, owned beneficially
(within the meaning of Rule 13d-3 under the Exchange Act) and of record by such
person, including any shares of any class or series of the Corporation as to which
he or she has a right to acquire beneficial ownership at any time in the future,
(iii) a description of any agreement, arrangement or understanding (including any
derivative or short positions, profit interests, swaps, options, warrants, stock
appreciation or similar rights, hedging transactions, and borrowed or loaned shares)
that has been entered into as of the date of the stockholders notice by, or on
behalf of, such stockholder or such beneficial owner, the effect or intent of which
is to mitigate loss to, manage risk or benefit of share price changes for, or
increase or decrease the voting power of, such stockholder or such beneficial owner,
with respect to shares of stock of the Corporation, and such arrangements or
holdings shall be disclosed without regard to whether they convey any voting rights
in such shares to such stockholder or beneficial owner, (iv) any proxy (other than a
revocable proxy or consent given in response to a solicitation made pursuant to
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 stockholder or beneficial owner has or shares a right to vote any shares
of any class or series of the Corporation, (v) any performance related fees (other
than an asset based fee) that such stockholder or beneficial owner is entitled to
based on any increase or decrease in the value of shares of any class or series of
the Corporation, (vi) any other information relating to such stockholder or
beneficial owner 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 stockholder or beneficial owner in support of the business proposed
to be brought before the meeting pursuant to Section 14(a) of the Exchange Act and
(vii) 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 propose such nomination; provided, however, that (iii)
through (vi) above shall not include any such disclosures with respect to the
ordinary course of business activities of any broker, dealer, commercial bank, trust
Corporation or other nominee who is submitting notice pursuant to this Section 7 of
Article I 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
(B) 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 and any
material interest in such business of each stockholder, (B) the text of the proposal
or business (including the text of any resolutions proposed for consideration), and
(C) with respect to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the proposal is made (x) a reasonably detailed description of
all agreements, arrangements and understandings between or among such stockholder
and such beneficial owner, any of their respective affiliates or associates, or any
others acting in concert with any of the foregoing, or (y) between or among such
stockholder and the beneficial owner on the one hand and any other person or entity
(including their names) on the other hand, in connection with the proposal of such
business by such stockholder.
(iv) 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
2.11(a) 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, if practicable (or, if not practicable, on the first
practicable date prior to) any adjournment or postponement thereof (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).
(b)
Advance Notice of Nominations for Election to the Board at a Meeting
.
(i) Nominations of persons for election to the Board may be made at an annual meeting
or at a special meeting of stockholders at which directors are to be elected pursuant to the
Corporations notice of meeting (1) by or at the direction of the Board or (2) provided that
the Board has determined that directors shall be elected at such meeting, by any stockholder
of the Corporation 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 the
notice provided for in this paragraph (b) of Section 2.11 is delivered to the Secretary of
the Corporation and at the time of the meeting, (B) is entitled to vote at the meeting and
upon such election and (C) has complied with the notice procedures set forth in this Section
2.11(b). 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.
(ii) Without qualification, for a stockholder to make any nomination of a person or
persons for election to the Board at an annual meeting, the stockholder must (i) provide
timely notice 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 2.11(b). To be timely, a stockholder must comply with the notice
provisions set forth in paragraph (ii) of Section 2.11(a) above. In the event the
Corporation calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board, any such stockholder entitled to vote in such election of directors
may nominate a person or persons (as the case may be) for election to such position(s) as
specified in the Corporations notice of meeting, if the stockholders notice shall be
delivered to the Secretary at the principal executive offices of the Corporation not earlier
than the close of business on the 120th day prior to such special meeting and not later than
the close of business on the later of the 90th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board to be elected at such meeting. In no event
shall any adjournment or postponement of a special meeting or the announcement thereof
commence a new time period (or extend any time period) for the giving of a stockholders
notice as described above.
(iii) To be in proper form for purposes of this Section 2.11(b), a stockholders notice
to the Secretary shall set forth:
(A) as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination is made, the information required by clause (A) of
paragraph (iii) of Section 2.11(a); and
(B) as to each person whom the stockholder proposes to nominate for election or
re-election as a director (i) the information set forth in clause (A) of paragraph
(iii) of Section 2.11(a) with respect to each proposed nominee, (ii) appropriate
biographical information including, but not limited to, the proposed nominees age,
business and residence address, personal and professional experience and
affiliations, and principal occupation or employment, (iii) 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 nominees written consent to being named in
the proxy statement as a nominee and to serving as a director if elected), (iv) a
statement whether such person, if elected, intends to tender, promptly following
such persons election or re-election, an advance irrevocable resignation that will
be effective upon (a) the failure to receive the required vote at the next meeting
at which the director is nominated for re-election and (b) acceptance of such
resignation by the Committee as defined in Section 2.9(c) of these Bylaws, and (v) 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 the stockholder giving the notice and
the beneficial owner, if any, on the one hand, and each proposed nominee, his or her
respective affiliates and associates and any other persons with whom such proposed
nominee is acting in concert on the other hand, and such description shall include,
but shall not be limited to, all information that would be required to be disclosed
pursuant to Item 404 under Regulation S-K if such stockholder or beneficial owner
were the registrant for purposes of such rule and the proposed nominee were a
director or executive officer of such registrant.
(iv) The Corporation may require any proposed nominee to furnish such other information
as may reasonably be required by the Corporation to determine the eligibility of such
proposed nominee to serve as a director of the Corporation (including information related to
such proposed nominees independence).
(v) A stockholder providing notice of any nomination proposed to be made at an annual
or special meeting shall update and supplement such notice in the same manner as required
for the proposal of business in clause (iv) of Section 2.11(a).
(c)
General
.
(i) Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at an annual meeting, and no person shall be eligible for election as a director
of the Corporation at an Election Meeting, except in accordance with this Section 2.11.
Except as otherwise provided by law or the Certificate of Incorporation, the chairman of the
meeting shall have the power and duty to determine whether a the proposal or nomination was
made or proposed, as the case may be, in accordance with the procedures set forth in this
Section 2.11 and to declare that any defective proposal or nomination shall be disregarded.
(ii) Notwithstanding the foregoing provisions of this Section 2.11, unless otherwise
required by law, if the stockholder (or a qualified representative of the stockholder) does
not appear at the annual or special meeting of stockholders of the Corporation to present a
nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of
such vote may have been received by the Corporation. For purposes of this Section 2.11, to
be considered a qualified representative of the stockholder, a person must be authorized by
a writing executed by such stockholder or an electronic transmission delivered by such
stockholder to act for such stockholder as proxy at the meeting of stockholders and such
person must produce such writing or electronic transmission, or a reliable reproduction of
the writing or electronic transmission, at the meeting of stockholders.
(iii) For purposes of this Section 2.11, public announcement shall mean disclosure in
a press release reported by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iv) Notwithstanding the foregoing provisions of this Section 2.11, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section 2.11. Nothing
in this Section 2.11 shall be deemed to affect any rights (A) of stockholders to request
inclusion of proposals or nominations in the Corporations proxy statement pursuant to Rule
14a-8 under the Exchange Act or (B) of the holders of any series of Preferred Stock to elect
directors under specified circumstances.
ARTICLE 3
Section 3.1
Board of Directors
.
The business and affairs of the Corporation shall be managed by, or under the direction of, a
Board. The Board may exercise all such powers of the Corporation and do all such lawful acts and
things on its behalf as are not by the General Corporate Law of the State of Delaware, the
Certificate of Incorporation or these Bylaws directed or required to be exercised or done by
stockholders.
Section 3.2
Number
.
The number of directors which shall constitute the whole Board shall be fixed from time to
time by the resolution of the Board. In no event shall the total number of directors which shall
constitute the whole Board be fixed by the Board at less than three (3) or more than nine (9);
provided, however, that commencing as of the election of directors at the 2014 annual meeting of
stockholders, in no event shall the total number of directors which shall constitute the whole
Board be fixed by the Board at less than three (3) or more than five (5). Except as provided
otherwise in these Bylaws, directors shall be elected at the annual meeting of stockholders. Each
director shall hold office until the annual meeting of stockholders next succeeding his or her
election or appointment and until his or her successor is elected and qualified or until his or her
earlier resignation or removal.
Section 3.3
Resignation and Removal
.
Any director or member of a committee of, the Board may resign at any time upon written notice
to the Board, the Chairman of the Board, the Executive Vice Chairman of the Board, the CEO or the
President. Unless specified otherwise in the notice, such resignation shall take effect upon
receipt of the notice by the Board, the Chairman of the Board, the Executive Vice Chairman of the
Board, the CEO or the President. The acceptance of a resignation shall not be necessary to make it
effective. Any director may be removed, either with or without cause, as provided by the General
Corporation Law of the State of Delaware.
Section 3.4
Vacancies and Newly Created Directorships
.
Vacancies occurring for any reason and newly-created directorships resulting from an increase
in the authorized number of directors which shall constitute the whole Board, as fixed pursuant to
Section 3.2 of these Bylaws, shall be filled by the election of a new director or directors by the
affirmative vote of two-thirds (2/3) of the remaining members of the Board, although the remaining
directors may be less than a quorum, or by the required vote set forth in Section 2.9 at an
Election Meeting. Any director so chosen shall hold office until the earlier of (a) the annual
meeting of stockholders next succeeding his or her election or appointment and the election and
qualification of his or her successor or (b) until his or her earlier resignation or removal.
ARTICLE 4
Section 4.1
Date, Time and Place
.
Meetings of the Board shall be held on such date and at such time and place, either within or
without the State of Delaware, as shall be determined by the Board pursuant to these Bylaws.
Section 4.2
Annual Meetings
.
After the annual meeting of stockholders, the newly-elected Board may hold a meeting, on such
date and at such time and place as shall be determined by the Board, for the purpose of
organization, election of officers and such other business that may properly come before the
meeting. Such meeting may be held without notice.
Section 4.3
Regular Meetings
.
Regular meetings of the Board may be held without notice on such date and at such time and
place as shall be determined from time to time by the Board.
Section 4.4
Special Meetings
.
Special meetings of the Board may be held at any time upon the call of the Chairman of the
Board, the Executive Vice Chairman of the Board, the CEO, the President or the Secretary by means
of oral, telephonic, written, facsimile, electronic mail or other electronic means, or other
similar notice, duly given, delivered, sent or mailed to each director at least 48 hours prior to
the special meeting, in the manner prescribed by Section 6.1 of these Bylaws. Special meetings of
the Board may be held at any time without notice if all of the directors are present or if those
directors not present waive notice of the meeting in writing either before or after the date of the
meeting.
Section 4.5
Quorum
.
A majority of the whole Board as fixed pursuant to Section 3.2 of these Bylaws shall
constitute a quorum for the transaction of business at a meeting of the Board. If a quorum shall
not be present at a meeting of the Board, 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.
Section 4.6
Required Vote
.
Except as specifically provided otherwise by the General Corporation Law of the State of
Delaware, these Bylaws or the Certificate of Incorporation, the affirmative vote of a majority of
the directors present at a meeting of the Board at which a quorum is present shall be the act of
the Board with respect to the matter voted upon.
Section 4.7
Action Without Meeting
.
Any action required or permitted to be taken at a meeting of the Board, or committee thereof,
may be taken by directors without a meeting if all of the members of the Board, or committee
thereof, consent thereto in writing and such writing is filed with the minutes of proceedings of
the Board, or committee thereof.
Section 4.8
Telephone Meetings
.
Members of the Board, or any committee thereof, may participate in a meeting of the Board, or
committee thereof, by means of conference telephone or similar communications equipment by means of
which all of the members participating in the meeting can hear each other. Participation by members
of the Board, or committee thereof, by such means shall constitute presence in person of such
members at such meeting.
ARTICLE 5
Section 5.1
Designation and Powers
.
The Board may designate one or more committees from time to time in its discretion, by
resolution passed by the affirmative vote of a majority of the whole Board as fixed pursuant to
Section 3.2 of these Bylaws. Each committee shall consist of one or more of the directors on the
Board. 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 and unless otherwise provided in these Bylaws, 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, shall have and may exercise all of the powers
and authority of the Board in the management of the business and affairs of the Corporation and may
authorize the corporate seal of the Corporation affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the Certificate of
Incorporation or these Bylaws, adopting an agreement of merger or consolidation, recommending to
stockholders the sale, lease, or exchange of all or substantially all of the Corporations assets,
or recommending to stockholders a dissolution of the Corporation or a revocation of a dissolution;
and, unless the resolution of the Board expressly so provides, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance of stock of the Corporation
or any class or series of stock. Each committee shall keep regular minutes of its meetings and
shall report the same to the Board when requested to do so.
The appointment of any director to the position of Chair of the Nominating and Corporate
Governance Committee and to the position of Chair of the Compensation Committee shall at all times
require the affirmative vote of two-thirds (2/3) of the persons then serving as directors of the
Board, and the removal of any director from the position of Chair of the Nominating and Corporate
Governance and the position of Chair of the Compensation Committee shall at all times require the
affirmative vote of two-thirds (2/3) of the persons then serving as directors of the Board.
ARTICLE 6
Section 6.1
Delivery of Notice
.
Notices to stockholders and, except as permitted below, to directors on the Board shall be in
writing and may be delivered by mail or by messenger. Notice by mail shall be deemed to be given at
the time when such notice is deposited in a United States post office or letter box, enclosed in a
postage-paid sealed wrapper, and addressed to a stockholder or director at his respective address
appearing on the books and records of the Corporation, unless such stockholder or director shall
have filed with the Secretary a written request that notices intended for such stockholder or
director be mailed or delivered to some other address, in which case the notice shall be mailed to
or delivered at the address designated in such request. Notice by messenger shall be deemed to be
given when such notice is delivered to the address of a stockholder or director as specified above.
Notices to directors also may be given orally in person or by telephone (promptly confirmed in
writing), or by telex, overnight courier, facsimile transmission to the director at the directors
facsimile telephone number as it is shown on the records of the Corporation, electronic mail or
other electronic means to the director at the directors electronic address as it is shown on the
records of the Corporation, or other similar means, or by leaving the notice at the residence or
usual place of business of a director. Notice by oral communication (promptly confirmed in
writing), telex, overnight courier, facsimile transmission, electronic mail or other electronic
means, or other similar means shall be deemed to be given upon dispatch of such notice. Notice by
messenger shall be deemed to be given when such notice is delivered to a directors residence or
usual place of business. Notices, requests, and other communications required or permitted to be
given or communicated to the Corporation by the Certificate of Incorporation, these Bylaws, or any
other agreement shall be in writing and may be delivered by messenger, United States mail, telex,
overnight courier or facsimile transmission or other similar means. Notice to the Corporation shall
be deemed to be given upon actual receipt of such notice by the Corporation.
Section 6.2
Waiver of Notice
.
Whenever notice is required to be given by the General Corporation Law of the State of
Delaware, the Certificate of Incorporation, or these Bylaws, a written waiver of notice signed by
the person entitled thereto, whether before or after the time stated in the notice, 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 the meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of stockholders, Board, or committee of the Board need be specified in
any written waiver of notice.
ARTICLE 7
Section 7.1
Officers
.
At its annual meeting, or at such other meeting as it may determine, or by unanimous written
consent of the directors without meeting, the Board shall elect such officers as the Board from
time to time may designate or the business of the Corporation may require. The Chairman of the
Board and Executive Vice Chairman shall be selected from among the directors on the Board, but no
other executive officers need be a member of the Board. Any number of offices may be held by the
same person.
Section 7.2
Other Officers and Agents
.
The Board also may elect such other officers and agents as the Board from time to time may
determine to be advisable. Such officers and agents shall serve for such terms, exercise such
powers, and perform such duties as shall be specified from time to time by the Board.
Section 7.3
Tenure, Resignation, Removal and Vacancies
.
Each officer of the Corporation shall hold his or her office until his or her successor is
elected and qualified, or until his or her earlier resignation or removal, or until he or she shall
cease to be a director in the case of the Chairman and Executive Vice Chairman of the Board;
provided, that if the term of office of any officer elected pursuant to Section 7.2 of these Bylaws
shall have been fixed by the Bylaws or determined by the Board or other governing body, such person
shall cease to hold office no later than the date of expiration of such term, regardless of whether
any other person shall have been elected or appointed to succeed such person. Any officer elected
by the Board may be removed at any time, with or without cause, by the Board; provided, that any
such removal shall be without prejudice to the rights, if any, of the officer so employed under any
employment contract or other agreement with the Corporation; provided, further, that the Chairman
and Executive Vice Chairman may only be removed upon the affirmative vote of two-thirds (2/3) of
the persons then serving as directors on the Board. Any officer may resign at any time upon written
notice to the Board, the Chairman of the Board, the Executive Vice Chairman of the Board, the CEO
or the President. Unless specified otherwise in the notice, such resignation shall take effect upon
receipt of the notice by the Board, the Chairman of the Board, the Executive Vice Chairman of the
Board, the CEO or the President. The acceptance of the resignation shall not be necessary to make
it effective. Any vacancy occurring in any office of the Corporation by death, resignation, removal
or otherwise shall be filled by the Board and such successor or successors shall hold office for
such term as may be specified by the Board.
Section 7.4
Authority and Duties
.
All officers and agents, as between themselves and the Corporation, shall have such authority
and perform such duties in the management of the Corporation as may be provided in these Bylaws and
as generally pertain or are necessarily incidental to the particular office or agency. In addition
to the powers and duties hereinafter specifically prescribed for certain officers of the
Corporation, the Board from time to time may impose or confer upon any of the officers such
additional duties and powers as the Board may see fit, and the Board from time to time may impose
or confer any or all of the duties and powers hereinafter specifically prescribed for any officer
upon any other officer or officers. The Board may give general authority to any officer to affix
the corporate seal of the Corporation and to attest the affixing by his or her signature.
Section 7.5
The Chairman of the Board
.
The Chairman of the Board shall act as chairman at all meetings of the stockholders at which
he or she is present and shall preside at all meetings of the Board at which he or she is present.
In the event of disability or absence of the Chairman of the Board, these duties shall be performed
by the Executive Vice Chairman. The Chairman of the Board shall provide general leadership in
matters of policy and long-term programs, and shall have the right to delegate authority to the
other officers of the Corporation. Except when by law the signature of the CEO or President is
required, the Chairman of the Board shall possess the same power as the CEO and the President to
sign all certificates, contracts and other instruments of the Corporation which may be authorized
by the Board.
Section 7.6
The Executive Vice Chairman of the Board
.
The Executive Vice Chairman of the Board shall assist the CEO in managing the strategic
business and affairs of the Corporation, advise the Corporation on the strategic direction of the
Corporation, and when requested, counsel with and advise the other officers of the Corporation and
shall perform such other duties as he may agree with the Chief Executive Officer or as the Board
may from time to time determine. In the event of the disability or absence of the Chairman of the
Board, the Executive Vice Chairman shall preside at all meetings of the stockholders and all
meetings of the Board and perform the duties and exercise the powers of the Chairman.
Section 7.7
The Chief Executive Officer
.
The CEO subject to the control of the Board, shall have general and active supervision of the
business and affairs of the Corporation, shall sign certificates, contracts and other instruments
of the Corporation as authorized, and shall perform all such other duties as are properly required
of him or her by the Board or by the Chairman of the Board. The CEO shall have the right to
delegate authority to the other officers of the Corporation.
Section 7.8
The President
.
The President, subject to the control of the Board and the CEO, shall perform such duties as
are properly required of him or her by the Board, and shall sign such certificates, contracts and
other instruments of the Corporation as are authorized specifically or generally by the Board or
the CEO. The President shall have the right to delegate authority to the other officers of the
Corporation.
Section 7.9
The Vice President(s)
.
The several Vice Presidents shall perform the duties and have the powers as may, from time to
time, be assigned to them by the Board, the Chairman of the Board, the CEO or the President.
Section 7.10
The Treasurer
.
The Treasurer shall have the care and custody of all the funds of the Corporation and shall
deposit the same in such banks or other depositories as the Board, or any officer or officers
thereunder duly authorized by the Board, shall, from time to time, direct or approve. He or she
shall keep a full and accurate account of all monies received and paid on account of the
Corporation, and shall render a statement of his accounts whenever the Board shall require. He or
she shall perform all other necessary acts and duties in connection with the administration of the
financial affairs of the Corporation, and shall generally perform all the duties usually
appertaining to the affairs of the treasurer of a corporation. When required by the Board, he or
she shall give bonds for the faithful discharge of his or her duties in such sums and with such
sureties as the Board shall approve. In the absence or disability of the Treasurer, the person
designated by the CEO or the President shall perform his or her duties.
Section 7.11
The Secretary
.
The Secretary shall attend to the giving of notice of all meetings of stockholders and of the
Board and committees thereof, and shall keep minutes of all proceedings at meetings of the
stockholders, of the Board and of all meetings of such other committees of the Board as shall
designate him or her to so serve. The Secretary shall have charge of the corporate seal and shall
have authority to attest any and all instruments or writings to which the same may be affixed. He
or she shall keep and account for all books, documents, papers and records of the Corporation,
except those for which some other officer or agent is properly accountable. He or she shall
generally perform all the duties usually appertaining to the office of secretary of a corporation.
In the absence or disability of the Secretary, the person designated by the CEO or the President
shall perform his or her duties.
Section 7.12
The Assistant Secretary(ies)
.
The Assistant Secretary, if any be so appointed by the Board, or if there be more than one,
the Assistant Secretaries, shall perform such duties as may be specifically assigned to them from
time to time by the Board, the CEO or the President. In case of the absence or disability of the
Secretary, and if the Board, the CEO or the President has so authorized, the Assistant Secretary,
or if there be more than one Assistant Secretary, such Assistant Secretary as the Board, the CEO or
the President shall designate, shall perform the duties of the office of the Secretary.
ARTICLE 8
Section 8.1
Form and Signature
.
The Corporations stock may be certificated or uncertificated, as provided under the General
Corporation Law of the State of Delaware, and shall be entered in the books and records of the
Corporation and registered as they are issued. Any certificates representing shares of stock shall
be in such form the Board shall prescribe, certifying the number and class of shares of the stock
of the Corporation owned by the stockholder. No certificate shall be issued for any share until the
consideration therefor has been fully paid. Stock certificates issued to any stockholder of the
Corporation shall exhibit the holders name, certify the class and series of stock and the number
of shares in such class and series of stock owned by the holder, and shall be signed (a) by the
Chairman of the Board, or the Executive Vice Chairman of the Board, or the CEO, or the President,
or a Vice President, and (b) by the Treasurer, or any Assistant Treasurer, or the Secretary, or any
Assistant Secretary. Any or all of the signatures on a stock certificate may be facsimiles. In case
any officer, transfer agent, or registrar who has signed or whose facsimile signature has been
placed on a certificate shall have ceased to be such officer, transfer agent or registrar before
such certificate is issued, such certificate may be issued by the Corporation with the same effect
as if he or she were such officer, transfer agent or registrar on the date of issuance.
Within a reasonable time after the issuance or transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice that shall set forth the
name of the Corporation, the name of the stockholder, the number of shares in such class and series
of stock owned by the holder, and any restrictions on the transfer or registration of such shares
of stock imposed by the Corporations Certificate of Incorporation, these Bylaws, any agreement
among stockholders or any agreement between stockholders and the Corporation.
Section 8.2
Lost, Stolen or Destroyed Certificates
.
The Board may direct that (i) a new stock certificate be issued or (ii) uncertificated shares
in place of any certificate or certificates previously issued by the Corporation, in place of any
certificate theretofore issued by the Corporation which is alleged to have been lost, stolen, or
destroyed, upon the making of an affidavit of that fact by the person, or his or her legal
representative, claiming the certificate of stock to be lost, stolen or destroyed. When authorizing
such issuance of a new certificate or an uncertificated share, the Board, in its discretion and as
a condition precedent to the issuance thereof, may require the owner of the lost, stolen or
destroyed certificate, or his or her legal representative, to advertise the same in such manner as
the Board shall require and/or to give the Corporation a bond in such sum as the Board shall direct
as indemnity against any claim that may be made against the Corporation, any transfer agent or any
registrar on account of the alleged loss, theft, or destruction of any such certificate or the
issuance of such new certificate or an uncertificated share.
Section 8.3
Registration of Transfer
.
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, assignment or authority
to transfer, the Corporation shall issue a new certificate or evidence of the issuance of
uncertificated shares to the person entitled thereto, cancel the old certificate and record the
transaction on its books and records.
Upon the receipt of proper transfer instructions from the registered owner of uncertificated
shares, such uncertificated shares shall be cancelled, issuance of new equivalent uncertificated
shares or certificated shares shall be made to the shareholder entitled thereto and the transaction
shall be recorded upon the books of the Corporation. If the Corporation has a transfer agent or
registrar acting on its behalf, the signature of any officer or representative thereof may be in
facsimile.
ARTICLE 9
Section 9.1
Record Date
.
In order that the Corporation may determine the stockholders entitled to notice of, and to
vote at, a meeting of stockholders, or to express consent or dissent to corporate action in writing
without meeting, or entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change, conversion, or exchange
of stock, or for the purpose of any other lawful action, the Board may fix, in advance, a record
date which shall not be more than sixty (60) nor less than ten (10) days prior to the date of such
meeting nor more than sixty (60) days prior to any other action. A determination of stockholders of
record entitled to notice of, and to vote at, a meeting of stockholders shall apply to any
adjournment(s) of such meeting; provided, however, that the Board may, in its discretion, and shall
if otherwise required by these Bylaws fix a new record date for the adjourned meeting.
Section 9.2
Registered Stockholders
.
Except as specifically provided otherwise by the General Corporation Law of the State of
Delaware, the Corporation shall be entitled to recognize the exclusive right of a person registered
on its books and records as the owner of shares of stock of the Corporation to receive dividends
and to vote as such owner, shall be entitled to hold such person liable for calls and assessments,
and shall not be bound to recognize any equitable or other claim to, or interest in, such stock on
the part of any other person, whether or not the Corporation shall have express or other notice
thereof.
Section 9.3
Dividends
.
The Board shall declare and pay dividends ratably, share for share, on the Corporations
capital stock in all sums so declared, out of funds legally available therefor.
Section 9.4
Dividend Declarations
.
Dividends on the capital stock of the Corporation may be declared quarterly, semiannually or
annually as the Board may from time to time, in its discretion, determine.
Section 9.5
Checks and Notes
.
All checks and drafts on the bank accounts of the Corporation, all bills of exchange and
promissory notes of the Corporation, and all acceptances, obligations, and other instruments for
the payment of money drawn, signed, or accepted by the Corporation shall be signed or accepted, as
the case may be, by such officer or officers, agent or agents, and in such manner as shall be
thereunto authorized from time to time by the Board or by officers of the Corporation designated by
the Board to make such authorization.
Section 9.6
Fiscal Year
.
The fiscal year of the Corporation shall commence on January 1 and end on December 31 of each
year, unless otherwise fixed by resolution of the Board.
Section 9.7
Corporate Seal
.
The corporate seal shall be circular in form and shall have inscribed thereon the name of the
Corporation, the year of its organization, and the words Corporate Seal and Delaware. The seal
may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 9.8
Voting of Securities of Other Issuers
.
In the event that the Corporation shall own and/or have power to vote any securities
(including, but not limited to, shares of stock) of any other issuer, such securities shall be
voted by the Chairman of the Board or by such other person or persons, to such extent, and in such
manner as may be determined by the Board. If the Corporation shall be a general partner in any
partnership, the acts of the Corporation in such capacity may be approved by the Board and taken by
the officers as may be authorized or determined by the Board from time to time.
Section 9.9
Transfer Agents
.
The Board may make such rules and regulations as it may deem expedient concerning the
issuance, transfer and registration of securities (including, but not limited to, stock) of the
Corporation. The Board may appoint one or more transfer agents and/or one or more registrars and
may require all stock certificates and other certificates evidencing securities of the Corporation
to bear the signature of either or both.
Section 9.10
Books and Records
.
Except as specifically provided otherwise by the General Corporation Law of the State of
Delaware, the books and records of the Corporation may be kept at such place or places, either
within or without the State of Delaware, as may be designated by the Board.
Section 9.11
Security Issuances
.
The Corporation may only offer, sell or issue, or contract to offer, sell or issue shares of
its common stock, preferred stock, or any securities convertible into or exchangeable or
exercisable for shares of its common stock or preferred stock upon the affirmative vote of
two-thirds (2/3) of the persons then serving as directors on the Board, except for the following:
(a) grants of stock options, stock appreciation rights, restricted stock, restricted stock units or
other stock-based awards pursuant to any equity compensation plan approved by the Corporations
stockholders; (b) issuances of shares of common stock or preferred stock pursuant to the exercise,
conversion or vesting of stock options, stock appreciation rights, restricted stock, restricted
stock units or other stock-based awards granted pursuant to any equity compensation plan approved
by the Corporations stockholders; (c) issuances of securities of the Corporation in accordance
with the terms of that certain Rights Agreement dated as of December 31, 1998, between the
Corporation and U.S. Stock Transfer Corporation, as amended through June 1, 2010; (d) issuances of
shares of common stock pursuant to the exercise of warrants to issue up to 101,694 shares of common
stock that were granted to MidCap Financial, LLC and Silicon Valley Bank pursuant to that certain
Loan and Security Agreement dated as of May 27, 2010; and (e) any sales or issuances of common
stock, or contracts to sell or issue shares of common stock that (i) on the date of sale, issuance
or such contract, when combined (without duplication) with any sales or issuances of common stock,
or contracts to sell or issue shares of common stock in the preceding six month period, excluding
any sales or issuances pursuant to clauses (a) (d) above, amount to less than 10% (the 10%
Limitation) of the Corporations outstanding shares of common stock on the first day of such six
month period, and (ii) are sold at a price per share (the Minimum Price) of common stock of no
less than 90% of the average closing price of the Corporations common stock on the NASDAQ in the
10 trading days preceding the date of sale, issuance or contract, as applicable; provided that if
the Corporation issues shares and warrants together, as a unit or otherwise, the accounting value
of the warrants shall be disregarded in determining compliance with the Minimum Price and the
number of warrants shall be disregarded in determining compliance with the 10% Limitation so long
as (X) the exercise price of the warrants is at least 10% above the average closing price of the
Corporations common stock on the NASDAQ in the 10 trading days preceding the date of sale,
issuance or contract, as applicable, (Y) the number of warrants issued do not exceed 30% of the
shares of common stock sold, issued or contracted for, as applicable, and (Z) the warrants expire
in no more than 5 years from the date of issuance.
ARTICLE 10
Section 10.1
Indemnification and Insurance
.
(a)
Right to Indemnification
. Each person who was or is made a party or is threatened
to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a proceeding), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or was a director or officer of the
Corporation shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the same exists or may
hereafter be amended, against all costs, charges, expenses, liabilities and losses (including
attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of his or her heirs, executors and personal or legal representatives. The
right to indemnification conferred in this Section 10.1 shall be a contract right and shall, in the
case of directors but not officers, include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition; provided, however,
that, if the General Corporation Law of the State of Delaware requires, the payment of such
expenses incurred by a director in his or her capacity as a director (and not in any other capacity
in which service was or is rendered by such person while a director) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking,
by or on behalf of such director, to repay all amounts so advanced if it shall ultimately be
determined that such director is not entitled to be indemnified under this Section 10.1 or
otherwise.
(b)
Right of Claimant to Bring Suit
. If a claim under paragraph (a) of this Section
10.1 is not paid in full by the Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expenses of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where the required undertaking, if
any is required, has been tendered to the Corporation) that the claimant has not met the standards
of conduct which make it permissible under the General Corporation Law of the State of Delaware for
the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation (including its Board,
independent legal counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the General Corporation
Law of the State of Delaware, nor an actual determination by the Corporation (including its Board,
independent legal counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c)
Non-Exclusivity of Rights
. The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition conferred in this
Section 10.1 shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
(d)
Insurance
. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
(e)
Witness
. To the extent that any director or officer of the Corporation is by
reason of such position a witness in any action, suit or proceeding, he or she shall be indemnified
against all costs and expenses actually and reasonably incurred by him or her on his or her behalf
in connection therewith.
(f)
Certain Suits
. Notwithstanding the foregoing provisions of this Section 10.1,
except for proceedings to enforce any directors or officers rights to indemnification or any
directors rights to advancement of expenses, the Corporation shall not be obligated to indemnify
any director or officer, or advance expenses of any director, (or such persons heirs, executors or
personal or legal representatives) in connection with any proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized by the Board.
Section 10.2
Persons Other Than Directors and Officers
.
This Article 10 shall not limit the right of the Corporation, to the extent and in the manner
permitted by law, to indemnify and to advance expenses to, or to purchase and maintain insurance on
behalf of, persons other than those persons described in the first sentence of Section 10.1(a) or
to advance expenses to persons other than directors of the Corporation.
Section 10.3
Effect of Modifications
.
Any amendment, repeal or modification of any provision contained in this Article 10 shall,
unless otherwise required by law, be prospective only (except to the extent such amendment or
change in law permits the Corporation to further limit or eliminate the liability of directors or
officers) and shall not adversely affect any right or protection of any current or former director
or officer of the Corporation existing at the time of such amendment, repeal or modification with
respect to any acts or omissions occurring prior to such amendment, repeal or modification.
ARTICLE 11
Section 11.1
By the Stockholders
.
These Bylaws may be amended or repealed in whole or in part and new Bylaws may be adopted by
the affirmative vote of a majority of the aggregate number of shares of each class of the capital
stock issued and outstanding and entitled to vote on the subject matter, present in person or
represented by proxy at a meeting of stockholders provided that notice thereof is stated in the
written notice of the meeting.
Section 11.2
By the Board
.
These Bylaws may be amended or repealed in whole or in part and new Bylaws may be adopted by a
majority of the Board as provided by Section 109(a) of the General Corporation Law of the State of
Delaware and the Certificate of Incorporation; provided, however, that Sections 2.3, 2.9, 3.4, 4.4,
4.6, 5.2, 7.1, 7.3, 7.6, 9.11 and 11.2 may be amended or repealed in whole or in part only by the
affirmative vote of two-thirds (2/3) of the persons then serving as directors on the Board, or the
Corporations stockholders in accordance with Section 11.1.
ARTICLE 12
Section 12.1
Forum for Certain Actions
.
(a) Unless a majority of the Board, acting on behalf of the Corporation, consents in writing
to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if
the Court of Chancery does not have jurisdiction, another state court located within the State of
Delaware or, if no court located within the State of Delaware has jurisdiction, the federal
district court for the District of Delaware) shall be the sole and exclusive forum for (i) any
derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a
claim of breach of a fiduciary duty owed by any director, officer or other employee of the
Corporation to the Corporation or the Corporations stockholders, (iii) any action asserting a
claim against the Corporation or any of its directors, officers or other employees arising pursuant
to any provision of the Delaware General Corporation Law, the Certificate of Incorporation or these
Bylaws (in each case, as may be amended from time to time) or (iv) any action asserting a claim
against the Corporation or any of its directors, officers or other employees governed by the
internal affairs doctrine of the State of Delaware, in all cases subject to the courts having
personal jurisdiction over all indispensible parties named as defendants.
(b) If any action the subject matter of which is within the scope of the immediately preceding
clause (a) is filed in a court other than a court located within the State of Delaware (a Foreign
Action) in the name of any stockholder, such stockholder shall be deemed to have consented to (i)
the personal jurisdiction of the state and federal courts located within the State of Delaware in
connection with any action brought in any such court to enforce the immediately preceding clause
(a) (an Enforcement Action) and (ii) having service of process made upon such stockholder in any
such Enforcement Action by service upon such stockholders counsel in the Foreign Action as agent
for such stockholder.
(c) Any person or entity purchasing or otherwise acquiring any interest in shares of capital
stock of the Corporation shall be deemed to have notice of and consented to the provisions of this
Section 12.1.
Section 12.2
Certain Litigation Costs
.
To the fullest extent permitted by law, in the event that (a) without obtaining advance
approval of the Board, any current or former director or anyone on behalf of any current or former
director (each, a Claiming Director) asserts any claim or initiates any proceeding or joins,
offers substantial assistance to or has a direct financial interest in any claim or proceeding
against the Corporation or any of its directors or officers (including any proceeding purportedly
filed on behalf of the Corporation or any stockholder), and (b) such Claiming Director (or the
third party that received substantial assistance from the Claiming Director or in whose claim or
proceeding such Claiming Director had a direct financial interest) does not obtain a judgment on
the merits that substantially achieves, in substance and amount, the full remedy sought by such
Claiming Director (or third party), then such Claiming Director shall be obligated to reimburse the
Corporation and any such director or officer for all fees, costs and expenses of every kind and
description (including all reasonable attorneys fees and other litigation expenses) that the
Corporation or any such director or officer actually incurs in connection with such claim or
proceeding; provided, however, that the foregoing shall not apply with respect to any claim
asserted or proceeding initiated by a Claiming Director for which such Claiming Director is
entitled to (i) indemnification under Section 10.1 or any agreement with the Corporation or (ii)
bring suit under Section 10.1(b). For purposes of this Section 12.2, proceeding shall have the
definition set forth in Section 10.1(a) of these Bylaws.
Section 12.3
Severability
.
If any provision (or any part thereof) of these Bylaws shall be held to be invalid, illegal or
unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality
and enforceability of such provision in any other circumstance and of the remaining provisions of
these Bylaws (including each portion of any section of these Bylaws containing any such provision
held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and (ii) to the fullest extent
possible, the provisions of these Bylaws (including each such portion containing any such provision
held to be invalid, illegal or unenforceable) shall be construed for the benefit of the Corporation
to the fullest extent permitted by law so as to (a) give effect to the intent manifested by the
provision held to be invalid, illegal or unenforceable and (b) permit the Corporation to protect
its directors, officers, employees and agents from personal liability in respect of their good
faith service. Reference herein to laws, regulations or agencies shall be deemed to include all
amendments thereof, substitutions therefor and successors thereto, as the case may be.
* * * * *
June 26, 2014
(a Delaware corporation)
OFFICES
MEETING OF STOCKHOLDERS
DIRECTORS
MEETINGS OF THE BOARD OF DIRECTORS
COMMITTEES OF THE BOARD OF DIRECTORS
Section 5.2
NOTICES
OFFICERS
CERTIFICATES OF STOCK
GENERAL PROVISIONS
INDEMNIFICATION
AMENDMENTS TO THESE BYLAWS
FORUM SELECTION, CERTAIN LITIGATION COSTS AND SEVERABILITY