BYLAWS
OF
NOVUME SOLUTIONS, INC.
A Delaware Corporation
AMENDED AND RESTATED
BYLAWS
OF
NOVUME SOLUTIONS, INC.
(A Delaware corporation)
As adopted and with effect on August 24, 2017
ARTICLE I
CORPORATE OFFICES
The
registered office of Novume Solutions, Inc. (the
“
Company
”)
shall be in the City of Wilmington, County of New Castle, State of
Delaware. The name of the registered agent of the Company at such
location is The Corporation Trust Company.
1.2
Other Offices.
The
Board of Directors (the “
Board
”) may at any time
establish other offices at any place or places where the Company is
qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1
Annual Meeting.
(a)
The annual meeting of stockholders (any such meeting being
referred to in these Bylaws as an “
Annual
Meeting
”)
for the
election of directors to succeed those whose term expire (or, if
fewer, the number of directors properly nominated and qualified for
election) and for the transaction of such other business as may
properly come before the meeting shall be held at the hour, date
and place within or without the United States which is fixed by
resolution of the Board adopted by a majority of the Whole
Board.
For purposes of these Bylaws, the term
“
Whole
Board
” shall mean the total number of authorized
directors whether or not there exist any vacancies in previously
authorized directorships.
(b) The time, date and place of an Annual
Meeting may be changed at any time by resolution of the Board
approved by the same vote of the Board as is required to fix the
original time, date and place of the Annual Meeting.
Further,
the Board may, in its sole discretion, determine
that the meeting may be held solely by means of remote
communication, as permitted by Section 211 of the Delaware
General Corporation Law, as amended (“
DGCL
”).
(c) Unless
otherwise provided herein,
any and all
references hereafter in these Bylaws to an Annual Meeting or Annual
Meetings also shall be deemed to refer to any special meeting or
special meetings.
2.2
Notice
of Stockholder Business and Nominations
.
(a)
Annual Meetings of
Stockholders
.
(1)
For
proposed nominations of persons for election to the Board of the
Company and the proposal of business to be properly brought before
an Annual Meeting, such proposed nominations or other proposed
business must be brought before such meeting (a) pursuant to the
Company’s notice of meeting (or any supplement thereto), (b)
by or at the direction of the Board or any duly authorized
committee thereof , or (c) by any stockholder of record of the
Company “
Present in
Person
” (as defined
below) who (A) was a stockholder of record at the time of giving of
notice provided for in Section 2.2(a)(2), (B) is entitled to vote
at such meeting, and (C) who complies in all applicable respects
with the requirements set forth in Section 2.2(a)(2) and the other
requirements set forth elsewhere in this Section 2.2. In addition
to the other requirements set forth in this Section 2.2, for any
proposal of business to be considered at an Annual Meeting, it must
be a proper subject for action by stockholders of the Company under
these Bylaws, the Company’s Certificate of Incorporation, as
amended (the “
Certificate of
Incorporation
”), the
DGCL, and other applicable law.
Subject to Section 2.2(b)(10) of this Article II
and except as otherwise required by applicable law, clause (c) of
this Section 2.2(a)(1) shall be the exclusive means for a
stockholder to make nominations or propose other business (other
than proposals submitted for inclusion in the Company’s proxy
statement pursuant to, and in compliance with, Rule 14a-8 (and the
interpretations thereunder) of the Securities Exchange Act of 1934,
as amended (the “
Exchange
Act
”) and the rules and
regulations of the U.S. Securities and Exchange Commission (the
“
SEC
”) promulgated thereunder and which
proposals are not excludable under Rule 14a-8 of the Exchange Act,
whether pursuant to a no-action letter from the Staff of the
SEC’s Division of Corporation Finance or a determination of a
federal court of competent jurisdiction before an Annual
Meeting.
For purposes of these Bylaws,
“
Present in
Person
” shall mean that
the stockholder proposing that the business be brought before an
Annual Meeting, or, if the proposing stockholder is not an
individual, a Qualified Representative (as defined below) of such
proposing stockholder, appear in person at such Annual Meeting
(unless such meeting is held by means of remote communication in
which case the proposing stockholder or its qualified
representative shall be present at such Annual Meeting by means of
remote communication).
(2)
Except
as otherwise required by applicable law or the Certificate of
Incorporation, for proposed nominations or other proposed business
to be properly brought before an Annual Meeting by a stockholder
pursuant to clause (c) of paragraph (a)(1) of this Section 2.2, (i)
the stockholder must have given timely notice thereof in writing
and in proper form to the Secretary of the Company with the
information contemplated and required by this Section 2.2(a)(2)
including, where applicable, delivery to the Company of timely and
completed questionnaires as contemplated and required by this
Section 2.2(a)(2), (ii) the stockholder must have otherwise
complied with this Section 2.2(a)(2) and all other provisions of
this Section 2.2 in all applicable respects, (iii) the making of
such proposal or proposed nomination(s) must be permitted by the
Certificate of Incorporation, these Bylaws, the DGCL and other
applicable law, and (iv) the proposed business and/or proposed
nomination(s) must be proper matters for stockholder action under
the Certificate of Incorporation, these Bylaws, the DGCL and other
applicable law.
To be
timely
for purposes of this Section 2.2(a)(2), a
stockholder’s notice shall be delivered to the Secretary of
the Company at the principal executive offices of the Company on a
date not later than the close of business on the ninetieth (90th)
calendar day, nor earlier than the close of business on the one
hundred twentieth (120th) calendar day, prior to the first
anniversary of the immediately preceding year’s Annual
Meeting;
provided,
however
, that if there was no
Annual Meeting in the immediately preceding year or in the event
that the date of the Annual Meeting is advanced by more than thirty
(30) calendar days before or delayed by more than sixty (60)
calendar days after such anniversary date, notice by the
stockholder to be timely must be so delivered on or before the
later of (i) the close of business on the ninetieth (90th) calendar
day prior to such Annual Meeting or (ii) the close of business on
the tenth (10th) calendar day following the day on which public
disclosure of the date of such meeting by the Company is first
made. In no event shall any adjournment or postponement of an
annual meeting or the announcement thereof commence a new time
period for the delivery of such notice.
To be in
proper form
, a notice from a stockholder shall set
forth:
(a)
as to each person whom such stockholder proposes to nominate for
election or re-election as a director, (i) all information relating
to such proposed nominee that would be required to be disclosed in
a proxy statement or other filing if such a filing was to be made
in connection with a solicitation of proxies for the election of
such proposed nominee in an election contest (even if a contested
solicitation is not involved), or is otherwise required, in each
case pursuant to and in accordance with Regulation 14A under the
Exchange Act and the rules and regulations of the SEC promulgated
thereunder (including such person’s written consent to being
named in the proxy statement as a nominee and to serving as a
director of the Company if elected); (ii) a description in
reasonable detail of all direct and indirect compensation,
reimbursement, indemnification or other benefit (whether monetary
or non-monetary) arrangements, agreements or understandings,
written or oral, during the past three years, and any other
material relationship, if any, between or concerning such
stockholder, any Stockholder Associated Person (as defined below)
or any of their respective affiliates or associates, on the one
hand, and the proposed nominee or any of his or her affiliates or
associates, on the other hand; (iii) a description in reasonable
detail of any and all agreements, arrangements and/or
understandings (whether written or oral and whether formal or
informal), between such proposed nominee and any person or entity
(naming each such person or entity) with respect to any direct or
indirect compensation, reimbursement, indemnification or other
benefit (whether monetary or non-monetary) in connection with or
related to such proposed nominee’s service on the Board if
elected as a member of the Board; (iv) all information that would
be required to be disclosed pursuant to Items 403 and 404 under
Regulation S-K if the stockholder providing the notice or any
Stockholder Associated Person were the “registrant” for
purposes of such rule and the proposed nominee were a director or
executive officer of such registrant; (v) all information with
respect to such proposed nominee that would be required to be set
forth in a stockholder’s notice pursuant to this Section
2.2(a)(2) if such proposed nominee was the proposing stockholder or
a Stockholder Associated Person; (vi) to the extent that such
proposed nominee has entered into (a) any agreement, arrangement or
understanding (whether written or oral and whether formal or
informal) with, or has given any commitment or assurance to, any
person or entity as to the positions that such proposed nominee, if
elected as a director of the Company, would take in support of or
in opposition to any issue or question that may be presented to him
or her for consideration in his or her capacity as a director of
the Company, (b) any agreement, arrangement or understanding
(whether written or oral and whether formal or informal) with, or
has given any commitment or assurance to, to any person or entity
as to how such proposed nominee, if elected as a director of the
Company, would act or vote with respect to any issue or question
presented to him or her for consideration in his or her capacity as
a director of the Company, (c) any agreement, arrangement or
understanding (whether written or oral, formal or informal) with
any person or entity that could potentially limit or interfere with
the proposed nominee’s ability to comply, if elected as a
director of the Company, with his or her fiduciary duties, as a
director of the Company, to the Company or its stockholders, or (d)
any agreement, arrangement or understanding (whether written or
oral and whether formal or informal) with any person or entity that
could be reasonably interpreted as having been or being intended to
require such proposed nominee to consider the interests of a person
or entity (other than the Company and its stockholders) in
complying with his or her fiduciary duties, as a director of the
Company, to the Company or its stockholders, a description in
reasonable detail of each such agreement, arrangement or
understanding (whether written or oral and whether formal or
informal) or commitment or assurance (whether written or oral and
whether formal or informal); (vii) to the extent that such proposed
nominee has been determined by any governmental authority or
self-regulatory organization to have violated any federal or state
securities or commodities laws, including but not limited to, the
Securities Act of 1933, as amended, the Exchange Act or the
Commodity Exchange Act, a description in reasonable detail of such
violation and all legal proceedings relating thereto; (viii) to the
extent that such proposed nominee has been convicted of any past
criminal offenses involving dishonesty or a breach of trust or
duty, a description in reasonable detail of such offense and all
legal proceedings relating thereto; (ix) to the extent that such
proposed nominee has ever been suspended or barred by any
governmental authority or self-regulatory organization from
engaging in any profession or participating in any industry, or has
otherwise been subject to a disciplinary action by a governmental
authority or self-regulatory organization that provides oversight
over the proposed nominee’s current or past profession or an
industry that the proposed nominee has participated in, a
description in reasonable detail of such action and the reasons
therefor; and (x) such proposed nominee’s executed written
undertaking agreeing to comply, if elected as a director of the
Company, with all corporate governance, conflicts of interest, code
of conduct and ethics, confidentiality and stock ownership and
trading policies and guidelines of the Company, as the same shall
be amended from time to time by the Board and further agreeing not
to become, a party to any agreement, arrangement or understanding
with any person or entity other than the Company in connection with
service or action as a member of the Board that has not been
disclosed to the Company;
(b)
as to any other business that the stockholder proposes to bring
before the meeting, a description of the business desired to be
brought before the meeting, the reasons for conducting such
business at the meeting, the text of the proposal or business
(including the text of any resolutions proposed for consideration
and in the event that such business includes a proposal to amend
the Bylaws of the Company, the language of the proposed amendment),
any interest in such business of such stockholder or any
Stockholder Associated Person, individually or in the aggregate,
including any anticipated benefit to the stockholder or any
Stockholder Associated Person therefrom and the names and addresses
of other stockholders known by the stockholder proposing such
business to support such proposal, and the class and number of
shares of the Company’s capital stock beneficially owned by
such other stockholders; and
(c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such stockholder or
any Stockholder Associated Person as they appear on the
Company’s books, and of such beneficial owner, (ii) the class
(and, if applicable, series) and number of shares of the Company
which are owned, directly or indirectly, beneficially and of record
by such stockholder or any Stockholder Associated Person (including
any shares of any class or series of the Company as to which such
stockholder or any Stockholder Associated Person has a right to
acquire beneficial ownership at any time in the future, whether
such right is exercisable immediately, only after the passage of
time or only upon the satisfaction of certain conditions
precedent), the dates on which such shares were acquired and the
investment intent of such acquisition of shares at the time they
were acquired, (iii) a description in reasonable detail of any
option, warrant, convertible security, stock appreciation right or
similar right with an exercise or conversion privilege or a
settlement payment or mechanism at a price related to any class
(or, if applicable, series) of shares of stock of the Company or
with a value derived in whole or in part from the value of any
class (or, if applicable, series) of shares of stock of the
Company, whether or not such instrument or right shall be subject
to settlement in the underlying class or series of capital stock of
the Company or otherwise (each, a “
Derivative
Instrument
”) directly or
indirectly owned beneficially or of record by such stockholder or
any Stockholder Associated Person and any other direct or indirect
opportunity to profit or share in any profit derived from any
increase or decrease in the value of shares of stock of the Company
of the stockholder or any Stockholder Associated Person, (iv) a
description in reasonable detail of any proxy, contract,
arrangement, understanding or relationship (whether written or oral
and whether formal or informal) between such stockholder or any
Stockholder Associated Person and any other person or entity
(naming each such person or entity) pursuant to which such
stockholder or any Stockholder Associated Person has a right to
vote any securities of the Company, (v) a description in reasonable
detail of any plans or proposals, that would be required to be
disclosed by such stockholder or any Stockholder Associated Person
or any other person or entity pursuant to Item 4 of a Schedule 13D
that would be filed pursuant to the Exchange Act and the rules and
regulations promulgated thereunder (regardless of whether the
requirement to file a Schedule 13D is applicable to such
stockholder or any Stockholder Associated Person or other person or
entity) together with a description of any agreements, arrangements
or understandings (whether written or oral and whether formal or
informal) that relate to such plans or proposals, (vi) a
description in reasonable detail of any agreements, arrangements or
understandings that would be required to be disclosed by such
stockholder or any Stockholder Associated Person or any other
person or entity pursuant to Item 5 or Item 6 of a Schedule 13D
that would be filed pursuant to the Exchange Act and the rules and
regulations promulgated thereunder (regardless of whether the
requirement to file a Schedule 13D is applicable to such
stockholder or any Stockholder Associated Person or other person or
entity), (vii) a description in reasonable detail of any
proportionate interest in shares of the Company or Derivative
Instruments held, directly or indirectly, by a general or limited
partnership in which such stockholder or any Stockholder Associated
Person is a general partner or beneficially owns, directly or
indirectly, an interest in a general partner, (viii) a description
in reasonable detail of any performance-related fees (other than an
asset-based fee) that such stockholder or any Stockholder
Associated Person is entitled to attributable to any increase or
decrease in the value of the shares of stock of the Company or
Derivative Instruments, (ix) a description in reasonable detail of
any pending, or to such stockholder’s knowledge, threatened
legal proceeding in which such stockholder or any Stockholder
Associated Person is a party or participant involving the Company
or any officer, director affiliate, or associate of the Company,
(x) a description in reasonable detail of any relationship
(including any direct or indirect interest in any agreement,
arrangement or understanding, whether written or oral and whether
formal or informal) between such stockholder or any Stockholder
Associated Person and the Cormpany or any director, officer,
affiliate or associate of the Company (naming such officer,
director affiliate, or associate), including, but not limited to, a
description in reasonable detail of any discussions between such
stockholder or any Stockholder Associated Person and any officer,
director affiliate, or associate of the Company (naming such
officer, director affiliate, or associate) with respect to (1) the
proposal of any business or the proposal of any nominees sought to
be brought before an Annual Meeting by a
stockholder, (2) any changes sought to be made to the composition
of the Board or the Company’s strategic direction, or (3) any
plans or proposals for the Company to be potentially pursued by the
stockholder or any Stockholder Associated Person if any proposed
business was approved, or any proposed nominees were elected, at
the Annual Meeting, (xi) a description in reasonable detail of any
direct or indirect interest of such stockholder or any Stockholder
Associated Person in any current or proposed contract or agreement
or existing, pending or proposed transaction with the Company, or
any affiliate or associate of the Company (naming such affiliate or
associate), (xii) any other information relating to such
stockholder or any Stockholder Associated Person required to be
disclosed in a proxy statement or other filing if such a filing was
to be made in connection with solicitations of proxies for, as
applicable, the proposal and/or for the election of directors in an
election contest (even if a contested solicitation is not involved)
pursuant to, and in accordance with, Section 14(a) of the Exchange
Act and the rules and regulations of the SEC promulgated
thereunder, (xiii) a representation that the stockholder is a
holder of record of the Company entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to
propose such business or nomination (unless such meeting is held by
means of remote communication and, in such case, a representation
that the stockholder shall appear at the meeting by means of remote
communication), (xiv) a certification that the stockholder and all
Stockholder Associated Persons have complied with all applicable
federal, state and other legal requirements, including, but not
limited to, Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder, in connection with the
stockholder’s and each Stockholder Associated Person’s
acquisition and record and/or beneficial ownership of shares of
capital stock or other securities of the Company, and (xv) whether
either the stockholder intends to deliver a proxy statement and
form of proxy to holders of, in the case of a proposal, at least
the percentage of the Company’s voting shares required under
the Certificate of Incorporation, the Bylaws and applicable law to
carry the proposal or, in the case of a nomination or nominations,
a sufficient number of holders of the Company’s voting shares
reasonably believed by such stockholder to be sufficient to elect
such nominee(s) or otherwise to solicit proxies or votes from
stockholders in support of such proposal or
nomination.
For purposes of these Bylaws,
“
close of
business
” shall mean 5:00
p.m. local time at the principal executive offices of the Company
on any calendar day, whether or not such day is a business day. For
purposes of these Bylaws, a “
Stockholder Associated
Person
” of any
stockholder means (i) any “affiliate” or
“associate” (as those terms are defined in Rule 12b-2
under the Exchange Act) of such stockholder, (ii) any beneficial or
record owner of any capital stock or other securities of the
Company owned of record or beneficially by such stockholder, (iii)
any person directly or indirectly controlling, controlled by or
under common control with such stockholder or any Stockholder
Associated Person referred to in clause (i) or (ii) above, (iv) any
person who is a member of a “group” (for purposes of
these Bylaws, as such term is used in Rule 13d-5 under the Exchange
Act) with any such stockholder or beneficial owner (or their
respective affiliates and associates), (v) any person
“
Acting in
Concert
” in respect of
any matter involving the Company or its securities with either such
stockholder or any beneficial or record owner of any capital stock
or other securities of the Company owned of record or beneficially
by such stockholder (or their respective affiliates and
associates), and (vi) any participant (as defined in paragraphs
(a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A, or any
successor instructions) with such stockholder or beneficial owner
in the solicitation of proxies in respect of any nominations or
other business proposed to be brought before the stockholders of
the Company. For purposes of these Bylaws, a person shall be deemed
to be “
Acting in
Concert
” with another
person if such person knowingly acts (whether or not pursuant to an
express agreement, arrangement or understanding) in concert with,
or towards a common goal relating to the management, governance or
control of the Company in parallel with, such other person where
(A) each person is conscious of the other person’s conduct or
intent and this awareness is an element in their decision-making
processes and (B) at least one additional factor suggests that such
persons intend to act in concert or in parallel, which such
additional factors may include, without limitation, exchanging
information (whether publicly or privately), attending meetings,
conducting discussions, or making or soliciting invitations to act
in concert or in parallel;
provided,
however
, that a person shall
not be deemed to be Acting in Concert with any other person solely
as a result of the solicitation or receipt of revocable proxies, or
special meeting demands from such other person in response to a
solicitation made pursuant to, and in accordance with, Section
14(a) of the Exchange Act by way of a proxy statement filed on
Schedule 14A. A person “
Acting in
Concert
” with another
person shall be deemed to be “
Acting in
Concert
” with any third
party who is also “
Acting in
Concert
” with such other
person.
In
addition, in order for a proposed nomination to be properly brought
by a stockholder before (i) an Annual Meeting pursuant to clause
(c) of Section 2.2(a)(1), or (ii) a special meeting pursuant to
Section 2.2(b)(9), any nominee proposed by a stockholder shall
complete a questionnaire, in a form provided by the Company upon
request to the Company’s Secretary, and deliver a signed copy
of such completed questionnaire to the Company no later than the
tenth (10th) calendar day after the date that the Company makes
available to the stockholder seeking to make such nomination or
such proposed nominee the form of such questionnaire. The Company
may require any proposed nominee to furnish such other information
as may be reasonably requested by the Company to determine the
eligibility of the proposed nominee to serve as an independent
director of the Company or that could be material to a reasonable
stockholder’s understanding of the independence, or lack
thereof, of the nominee. The information required to be included in
a notice pursuant to this Section 2.2(a)(2) or Section 2.2(b)(9)
shall be provided as of the date of such notice and shall be
supplemented by the stockholder not later than ten (10) calendar
days after the record date for the determination of stockholders
entitled to notice of the meeting to disclose any changes to such
information as of the record date. Upon written request by the
Secretary of the Company, any stockholder submitting a notice
pursuant to this Section 2.2(a)(2) or Section 2.2(b)(9) shall
provide, within five (5) business days of delivery of such request
(or such other period as may be specified in such request), written
verification, satisfactory in the reasonable discretion of the
Company, to demonstrate the complete accuracy and truthfulness of
any information, and the absence of any false and misleading
statements or other statements that may violate the Exchange Act or
other applicable law, in any notice submitted by the stockholder
pursuant to this Section 2.2(a)(2) or Section 2.2(b)(9) (including,
if requested by the Company, written confirmation by such
stockholder that it continues to intend to bring before the meeting
the proposed nominations and/or other business proposed in its
stockholder notice). If a stockholder fails to provide such written
verification within such period, the information as to which
written verification was requested may be deemed not to have been
provided in accordance with this Section 2.2(a)(2) or Section
2.2(b)(9). The information required to be included in a notice
pursuant to this Section 2.2(a)(2) or Section 2.2(b)(9) shall not
include any ordinary course business activities of any broker,
dealer, commercial bank, trust company or other nominee who, in the
ordinary course of business, is directed to prepare and submit the
notice required by this Section 2.2(a)(2) or Section 2.2(b)(9) on
behalf of a beneficial owner of the shares held of record by such
broker, dealer, commercial bank, trust company or other nominee and
who is not otherwise affiliated or associated with such beneficial
owner.
(3)
Notwithstanding
anything in the second sentence of paragraph (a)(2) of this Section
2.2 to the contrary, in the event that the number of directors to
be elected to the Board is increased and there is no public
disclosure, made by the Company, naming all of the nominees for
director or specifying the size of the increased Board at least one
hundred (100) calendar days prior to the first anniversary of the
immediately preceding year’s Annual Meeting, a
stockholder’s notice required by this Section 2.2 shall also
be considered timely, but only with respect to nominees for any new
positions created by such increase, and only with respect to a
stockholder who had, prior to such increase in the size of the
Board, previously submitted in proper written form, in compliance
with this Section 2.2, a notice prior to the deadline set forth in
the second sentence of paragraph (a)(2) of this Section 2.2, if it
shall be delivered to, or mailed and received by, the Secretary of
the Company at the principal executive offices of the Company not
later than the close of business on the tenth (10th) calendar day
following the day on which such public disclosure is first made by
the Company.
(b)
General
.
(1)
Subject
to the Certificate of Incorporation, Section 2.2(b)(10) of these
Bylaws and applicable law, only such persons who are proposed as
nominees in accordance with the provisions of this Section 2.2
shall be eligible for election and to serve as directors and the
only business that shall be conducted at an Annual Meeting is the
business that shall have been brought before the Annual Meeting in
accordance with the provisions of this Section 2. The chairman of
the meeting shall have the power to determine whether a nomination
or any other business proposed to be brought before the meeting was
made in accordance with the provisions of this Section 2.2 and if
the chairman of the meeting determines that any stockholder
proposal or proposed nomination was not made in accordance with the
provisions of this Section 2.2, such stockholder proposal or
proposed nomination shall be disregarded and shall not be presented
for action at the Annual Meeting.
(2) For
purposes of these Bylaws, “
public
disclosure
” or its
corollary “
publicly
disclosed
” shall mean
disclosure in (i) a press release issued by the Company and
distributed through a nationally-recognized news distribution
service, (ii) a document publicly filed or furnished by the Company
with the SEC pursuant to Section 13, 14 or 15(d) of the Act, or
(iii) another method reasonably intended by the Company to achieve
broad-based dissemination of the information contained
therein.
(3)
Notwithstanding
anything in this Section 2.2 to the contrary, a stockholder shall
also comply with all applicable requirements of the Exchange Act
and the rules and regulations promulgated thereunder including, but
not limited to, Section 13(d) and Section 14(a) of the Exchange Act
and the rules and regulations promulgated thereunder, with respect
to the matters set forth in this Section 2.2 and any filings
required to be made with the SEC in connection therewith. Nothing
in this Section 2.2 shall be deemed to affect any rights of (i)
stockholders to request inclusion of proposals in the
Company’s proxy statement pursuant to, and in compliance
with, Rule 14a-8 under the Exchange Act and the SEC’s
interpretations thereunder, including those of the Staff of the
SEC’s Division of Corporation Finance, or (ii) the holders of
any series of preferred stock to elect directors under specified
circumstances.
(4) Notwithstanding
any notice of the meeting sent to stockholders on behalf of the
Company, a stockholder must separately comply with this Section 2.2
to propose any nominations or conduct other business at any
stockholder meeting. If the stockholder’s proposed business,
including, but not limited to, the election of directors, is the
same or relates to business brought by the Company and included in
the Company’s meeting notice, the stockholder is nevertheless
still required to comply with this Section 2.2 and deliver its own
separate and timely notice to the Secretary of the Company that
complies in all respects with the requirements of this Section
2.2.
(5)
A stockholder submitting a notice to the Company pursuant to
paragraph (a)(2) of this Section 2.2, by its delivery to the
Company, represents and warrants that all information contained
therein, is true, accurate and complete in all respects, contains
no false and misleading statements and no statements that violate
the Exchange Act or other applicable law and such stockholder
acknowledges that it intends for the Company and the Board to rely
on such information as (i) being true, accurate and complete in all
respects and (ii) not containing any false and misleading
statements or any statements that violate the Exchange Act or other
applicable law.
(6)
For a stockholder’s notice to
comply with the requirements of paragraph (a)(2) of this Section
2.2, it must set forth in writing directly within the body of the
notice (as opposed to being incorporated by reference from any
other document or writing not prepared in response to the
requirements of this Section 2.2) all the information required to
be included therein as set forth in paragraph (a)(2) of this
Section 2.2 and each of the requirements of paragraph (a)(2) of
this Section 2.2 shall be directly responded to in a manner that
makes it clearly apparent how the information provided is
specifically responsive to any requirements of this paragraph
(a)(2). For the avoidance of doubt, a stockholder’s notice
shall not be deemed to be in compliance with paragraph (a)(2) of
this Section 2.2 if it attempts to include the required information
by incorporating by reference any other document, writing or part
thereof, including, but not limited to, any documents publicly
filed with the SEC.
(7) For
a stockholder’s notice to comply with the requirements of
paragraph (a)(2) of this Section 2.2, each of the requirements of
paragraph (a)(2) of this Section 2.2 shall be directly and
expressly responded to and a stockholder’s notice must
clearly indicate and expressly reference which provisions of
paragraph (a)(2) of this Section 2.2 the information disclosed is
intended to be responsive to. Information disclosed in one section
of the stockholder’s notice in response to one provision of
paragraph (a)(2) of this Section 2.2 shall not be deemed responsive
to any other provision of paragraph (a)(2) of this Section 2.2
unless it is expressly cross-referenced to such other provision and
it is clearly apparent how the information included in one section
of the stockholder’s notice is directly and expressly
responsive to the information required to be included in another
section of the stockholder’s notice pursuant to paragraph
(a)(2) of this Section 2.2. For the avoidance of doubt, statements
purporting to provide global cross-references that purport to
provide that all information provided shall be deemed to be
responsive to all requirements of paragraph (a)(2) of this Section
2.2 shall not satisfy the requirements of this paragraph (b)(7) of
this Section 2.2.
(8) Notwithstanding
the foregoing provisions of this Section 2.2, unless otherwise
required by applicable law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the Annual
Meeting or a special meeting of stockholders of the Company to
present a proposed nomination or other proposed business or does
not provide the information required by paragraph (a)(2) of Section
2.2 in a manner that complies with all applicable provisions of
this Section 2.2, including providing on a timely basis any
required supplement thereto, such proposed nomination and/or other
proposed business, as the case may, shall be disregarded and such
proposed nomination and/or proposed business shall not be
transacted, notwithstanding that proxies in respect of such vote
may have been solicited by the stockholder and delivered to the
Company. For purposes of this Section 2.2, to be considered a
qualified representative of the stockholder, a person must be a
duly authorized officer, member, manager or partner of such
stockholder or 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.
(9) Nominations
of persons for election to the Board may be made at a special
meeting of stockholders at which directors are to be elected
pursuant to the Company’s notice of meeting (a) by or at the
direction of the Board or any duly authorized committee thereof or
(b) provided that the Board has determined that directors shall be
elected at such meeting, by any stockholder of the Company who is a
stockholder of record at the time the notice provided for in this
Section 2.2(b)(9) is delivered to the Secretary of the Company, who
is entitled to vote at the meeting upon such election, who attends,
or whose duly qualified representative attends, the meeting and
makes such nominations, and who complies with the requirements of
this Section 2.2(b)(9) in all applicable respects. In the event the
Company 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 propose a
nominee or nominees (as the case may be) for election to such
position(s) as specified in the Company’s notice of meeting,
if a stockholder’s notice containing the information
contemplated and required by paragraph (a)(2) of Section 2.2
(including, but not limited to, for each proposed nominee, the
completed and signed questionnaire and undertaking required
thereby) shall be delivered to the Secretary of the Company at the
principal executive offices of the Company not earlier than the
close of business on the one hundred twentieth (120th) calendar day
prior to such special meeting and not later than the close of
business on the later of (i) the ninetieth (90th) calendar day
prior to such special meeting or (ii) the tenth (10th) calendar day
following the day on which public disclosure is first made by the
Company 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 the public disclosure of an adjournment or postponement of a
special meeting commence a new time period (or extend any time
period) for the giving of a stockholder’s notice as described
above. Except as expressly provided by, and subject to compliance
with, this Section 2.2(b)(9), stockholders shall not be permitted
to bring before any special meeting of the stockholders any
proposed business or the proposed nomination of persons for
election to the Board.
(10) All
provisions of this Section 2.2 are subject to, and nothing in this
Section 2.2 shall in any way limit the exercise, or the method or
timing of the exercise of, the rights of any person expressly
granted by the Company pursuant to a written agreement to nominate
directors, which rights may be exercised without compliance with
the provisions of this Section 2.2.
2.3
Special Meetings.
(a)
Except as otherwise required by statute and subject to the rights,
if any, of the holders of any series of preferred stock, special
meetings of the stockholders of the Company may be called at any
time by the Board acting pursuant to a resolution adopted by a
majority of the Whole Board
,
the Chairman of the Board, the President of the Company, or by one
or more stockholders holding shares in the aggregate entitled to
cast not less than 35% of the votes at that meeting. The Board may
postpone or reschedule any previously-scheduled special
meeting.
(b) At
any special meeting of the stockholders of the Company, only such
business shall be conducted or considered as shall have been
properly brought before the special meeting. For business to be
properly brought before a special meeting, it must be (i) specified
in the Company’s notice of meeting (or any supplement
thereto) given by or at the direction of the Board (or any duly
authorized committee thereof), (ii) if not specified in the notice
of meeting (or any supplement thereto) provided by or at the
direction of the Board (or any duly authorized committee thereof),
otherwise properly brought before the special meeting by or at the
direction of the Board (or any duly authorized committee of the
Board) or the Chairman of the Board (if any), or (iii) with respect
to the election of directors, provided that the Board has called a
special meeting of stockholders for the purpose of electing one or
more directors to the Board, by any stockholder of the Company who
complies in all respects with the requirements of Section
2.2(b)(9). Only those matters set forth in the Company’s
notice of the special meeting may be considered or acted upon at a
special meeting of stockholders of the Company.
2.4
Notice of Meetings; Postponements; Adjournment.
(a) A
notice of each Annual Meeting stating the hour, date and place, and
the means of remote communication, if any, of an Annual Meeting
shall be given not less than ten (10) calendar days nor more than
sixty (60) calendar days before the Annual Meeting, to each
stockholder entitled to vote thereat, except as otherwise provided
herein or required by law or the Certificate of Incorporation, by
delivering such notice to such stockholder or by mailing it,
postage prepaid, addressed to such stockholder at the address of
such stockholder as it appears on the Company’s stock
transfer books. Without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to
stockholders may be given by electronic mail or other electronic
transmission, in the manner provided in Section 232 of the
DGCL. An affidavit of the secretary or an assistant secretary or of
the transfer agent of the Company that the notice has been given
shall, in the absence of fraud, be prima facie evidence of the
facts stated therein. Notice of all special meetings of
stockholders shall be given in the same manner as provided for
Annual Meetings, except that the notice of all special meetings
shall state the purpose or purposes for which the meeting has been
called. Notice of an Annual Meeting of stockholders need not be
given to a stockholder if a waiver of notice is executed before or
after such meeting by such stockholder or if such stockholder
attends such meeting, unless such attendance is for the express
purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting was not lawfully
called or convened.
(b) The Board
may postpone and reschedule any previously scheduled Annual Meeting
and any record date with respect thereto, regardless of whether any
notice or public disclosure with respect to any such meeting has
been sent or made pursuant to Section 2.2 of this Article II of
these Bylaws or otherwise. In no event shall the public disclosure
of an adjournment, postponement or rescheduling of any previously
scheduled meeting of stockholders commence a new time period for
the giving of a stockholder’s notice under Section 2.2 of
this Article II of these Bylaws. When a previously called Annual
Meeting is postponed to another time, date or place, if any, notice
of the place (if any), date and time of the postponed meeting, the
record date for determining the stockholders entitled to vote at
the meeting (if such date is different from the record date for
stockholders entitled to notice of the meeting) and the means of
remote communications, if any, by which stockholders and proxy
holders may be deemed present and vote at such postponed meeting,
shall be given in conformity with this Section 2.4 unless such
meeting is postponed to a date that is not more than sixty (60)
calendar days after the date that the initial notice of the meeting
was provided in conformity with this Section 2.4.
(c)
When any meeting is convened, the presiding officer may adjourn the
meeting if (i) no quorum is present for the transaction of
business, (ii) the Board determines that adjournment is necessary
or appropriate to enable the stockholders to consider fully
information which the Board determines has not been made
sufficiently or timely available to stockholders, or (iii) the
Board determines that adjournment is otherwise in the best
interests of t
he
Company. When any Annual Meeting of stockholders is adjourned to
another hour, date or place, notice need not be given of the
adjourned meeting other than an announcement at the meeting at
which the adjournment is taken of the hour, date and place, if any,
to which the meeting is adjourned and the means of remote
communications, if any, by which stockholders and proxyholders may
be deemed to be present in person and vote at such adjourned
meeting;
provided,
however
, that if the adjournment is for more than thirty
(30) calendar days, or if after the adjournment a new record date
is fixed for the adjourned meeting, notice of the adjourned meeting
and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person
and vote at such adjourned meeting shall be given to each
stockholder of record entitled to vote thereat and each stockholder
who, by applicable law or under the Certificate of Incorporation or
these Bylaws, is entitled to such notice. At any adjourned meeting,
any business may be transacted that may have been transacted at the
original meeting.
2.5
Quorum.
A majority of the shares entitled to vote, present
in person or represented by proxy, shall constitute a quorum at any
meeting of stockholders,
except as otherwise provided by
law, these Bylaws or the Certificate of Incorporation
. If less than a quorum is present at a meeting,
the Chairman of the meeting or the holders of voting stock
representing a majority of the voting power present at the meeting
may adjourn the meeting from time to time,
and no other
business may be transacted at any such meeting; thereafter,
the meeting may be held as adjourned
without further notice, except as provided in Section 2.4 of this
Article II. At such adjourned meeting at which a quorum is present,
any business may be transacted which might have been transacted at
the meeting as originally noticed. The stockholders present at a
duly constituted meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum.
2.6
Voting and Proxies.
Stockholders
shall have one vote for each share of stock entitled to vote owned
by them of record according to the stock ledger of the Company,
unless otherwise provided by applicable law or by the Certificate
of Incorporation. Stockholders may vote either (i) in person, (ii)
by written proxy or (iii) by a transmission permitted by
§212(c) of the DGCL. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission
permitted by §212(c) of the DGCL may be substituted for or
used in lieu of the original writing or transmission for any and
all purposes for which the original writing or transmission could
be used, provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire
original writing or transmission. Proxies shall be filed in
accordance with the procedures established for the meeting of
stockholders. Except as otherwise limited therein or as otherwise
provided by applicable law, proxies authorizing a person to vote at
a specific meeting shall entitle the persons authorized thereby to
vote at any adjournment of such meeting, but they shall not be
valid after final adjournment of such meeting. A proxy with respect
to stock held in the name of two or more persons shall be valid if
executed by or on behalf of any one of them unless at or prior to
the exercise of the proxy the Company receives a specific written
notice to the contrary from any one of them.
2.7
Action
at a Meeting
.
The
affirmative vote of the majority of shares present in person or
represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the stockholders, except as
otherwise provided in the Certificate of Incorporation or these
Bylaws. Directors shall, except as otherwise required by law, these
Bylaws or the Certificate of Incorporation, be elected by a
majority of the votes cast by each class of shares entitled to vote
at a meeting of stockholders, present and entitled to vote in the
election.
The Company shall not
directly or indirectly vote any shares of its own
stock;
provided,
however
, that the Company may
vote shares which it holds in a fiduciary capacity to the extent
permitted by applicable law.
2.8
Stockholder
Lists
.
The Secretary or an Assistant Secretary (or the
Company’s transfer agent or other person authorized by these
Bylaws or by applicable law) shall prepare and make, at least ten
(10) calendar days before every Annual Meeting, a complete list of
the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for
a period of at least ten (10) calendar days prior to the meeting in
the manner provided by applicable law. The list shall also be open
to the examination of any stockholder during the whole time of the
meeting as provided by applicable law. The list shall be made
available (i) on a reasonably accessible electronic network,
provided that the information required to gain access to such list
is provided with the notice of the meeting or (ii) during ordinary
business hours at the principal place of business of the
Company;
provided,
however
, if the record date for
determining the stockholders entitled to vote is less than ten (10)
calendar days before the meeting date, the list shall reflect the
stockholders entitled to vote as of the tenth (10th) calendar day
before such meeting date. If the meeting is to be held at a
physical location, then a list of stockholders entitled to vote at
the meeting shall be produced and kept at the time and place of the
meeting during the whole time thereof and may be examined by any
stockholder who is present. If the meeting is to be held solely by
means of remote communication, then the list shall also be open to
the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the
notice of the meeting. The Company shall not be required to include
electronic mail addresses or other electronic contact information
on such list. Except as otherwise provided by applicable law, the
stock ledger shall be the sole evidence of the identity of the
stockholders entitled to examine the stock ledger, the list
required by this Section 2.8 or to vote in person or by proxy at
any meeting of the stockholders and the number of shares held by
each stockholder.
2.9
Presiding
Officer; Organization
.
(a)
Except as otherwise required by law, the Chief Executive Officer of
the Company or, if no such officer has been appointed or in his or
her absence, the President of the Company or, in his or her
absence, the chairman of the Board, shall call to order any meeting
of the stockholders and act as chairman of the meeting. In the
absence of the secretary of the Company, the secretary of the
meeting shall be such person as the chairman of the meeting
appoints.
(b) The
chairman of any meeting of stockholders shall determine the order
of business and the procedure at the meeting, including the manner
of voting and the conduct of business. The chairman shall have the
power to adjourn the meeting to another place, if any, date and
time. The date and time of opening and closing of the polls for
each matter upon which the stockholders will vote at the meeting
shall be announced at the meeting.
2.10
Inspectors of
Elections
.
The
Company shall, in advance of any meeting of stockholders, appoint
one or more inspectors to act at the meeting and make a written
report thereof. The Company may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate is able to act at a meeting of
stockholders, the presiding officer shall appoint one or more
inspectors to act at the meeting. Any inspector may, but need not,
be an officer, employee or agent of the Company. Each inspector,
before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her
ability. The inspectors shall perform such duties as are required
by the DGCL, including the counting of all votes and ballots. The
inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of the duties of the
inspectors. The presiding officer may review all determinations
made by the inspectors, and in so doing the presiding officer shall
be entitled to exercise his or her sole judgment and discretion and
he or she shall not be bound by any determinations made by the
inspectors. All determinations by the inspectors and, if
applicable, the presiding officer, shall be subject to further
review by any court of competent jurisdiction.
2.11
Conduct
of Business
.
(a)
The chairman of any meeting of stockholders of the Company shall
determine the order of business and the rules of procedure for the
conduct of such meeting, including the manner of voting and the
conduct of discussion as he or she determines to be in order. The
chairman shall have the power to adjourn the meeting to another
place, if any, date and time. The date and time of the opening and
closing of the polls for each matter upon which the stockholders
will vote at the meeting shall be announced at the
meeting.
(b)
Except to the extent inconsistent with such rules and regulations
as adopted by the Board, the chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting.
Such rules, regulations or procedures, whether adopted by the Board
or prescribed by the chairman of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or
order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting
to stockholders entitled to vote at the meeting, their duly
authorized and constituted proxies or such other persons as the
chairman of the meeting shall determine and, as a condition to
recognizing any such participant, requiring such participant to
provide the chairman of the meeting with evidence of his or her
name and affiliation, whether he or she is a stockholder or a proxy
for a stockholder, and the class and series and number of shares of
each class and series of capital stock of the Company which are
owned beneficially and/or of record by such stockholder; (iv)
restrictions on entry to the meeting after the time fixed for the
commencement thereof; (v) limitations on the time allotted to
questions or comments by participants; (vi) restrictions on the use
of audio or video recording devices at the meeting; (vii) actions
to comply with any state and local laws and regulations concerning
safety and security; (viii) removing any stockholder who refuses to
comply with meeting procedures, rules or guidelines as established
by the chairman of the meeting; and (ix) such other action as, in
the discretion of the chairman of the meeting, is deemed necessary,
appropriate or convenient for the proper conduct of the
meeting.
(c)
The chairman of the meeting of stockholders, in addition to making
any other determinations that may be appropriate to the conduct of
the meeting, shall, if the facts warrant, determine and declare to
the meeting that a nomination or matter of business was not
properly brought before the meeting and if such chairman should so
determine, such chairman shall so declare to the meeting and any
such nomination or matter of business not properly brought before
the meeting shall not be transacted or considered. Unless and to
the extent determined by the Board or the chairman of the meeting,
meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
2.12
Fixing
a Record Date
.
(a) For
the purpose of determining stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or
stockholders entitled to receive payment of any dividend or other
distribution or the allotment of any rights, or in order to make a
determination of stockholders for any other proper purpose, the
Board shall fix a date as the record date for any such
determination of stockholders, which date shall not precede the
date upon which the resolution fixing the record date is adopted by
the Board. Such date in any case shall be not more than sixty
(60) days, and in the case of a meeting of stockholders not
less than ten (10) days, prior to the date of the meeting or
event for the purposes of which it is fixed.
(b)
When a record date is so fixed, only stockholders of record on that
date shall be entitled to notice of and to vote at the meeting, or
to receive the dividend, other distribution or the allotment of
rights, or to exercise rights, as the case may be, notwithstanding
any transfer of any shares of stock on the books of the Company
after the record date. When a determination of stockholders
entitled to vote at any meeting of stockholders has been made as
provided in this Section 2.12, such determination shall,
unless otherwise provided by the Board, also apply to any
adjournment thereof.
(c) If
no record date is fixed, (i) the record date for determining
stockholders entitled to notice of or vote at a meeting of
stockholders shall be at the close of business on the day preceding
the day on which the notice is given, or, if notice is waived, at
the close of business on the day preceding the day on which the
meeting is held, and (ii) the record date for determining
stockholders for any other purpose shall be at the close of
business on the day on which the Board adopts the resolution
relating thereto.
2.13
Consent
of Stockholders to Corporate Action Without a
Meeting
.
(a) Any
action required to be taken at any Annual Meeting, or any action
that may be taken at any such Annual Meeting, may be taken without
a meeting, without prior notice, and without a vote if a consent in
writing, setting forth the action so taken, is (i) signed by
the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon
were present and voted, and (ii) delivered to the Company in
accordance with Section 228(a) of the DGCL.
(b) In
order that the Company may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board
may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the
Board, and which date shall not be more than ten (10) days after
the date upon which the resolution fixing the record date is
adopted by the Board. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary, request that the Board
fix a record date. The Board shall promptly, but in all events
within ten (10) calendar days after the date on which such written
notice is received, adopt a resolution fixing the record date
(unless a record date has previously been fixed by the Board
pursuant to the first sentence of this Section 2.13(b)). If no
record date has been fixed by the Board pursuant to the first
sentence of this Section 2.13(b) or otherwise within ten (10)
calendar days after the date on which such written notice is
received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no
prior action by the Board is required by applicable law, shall be
the first date after the expiration of such ten (10) day time
period on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the Company by
delivery to its registered office in the State of Delaware, its
principal place of business or an officer or agent of the Company
having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Company’s
registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by
the Board pursuant to the first sentence of this Section 2.13(b),
the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting if 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)
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless,
within sixty (60) days after the date the earliest dated consent is
delivered to the Company, a written consent or consents signed by a
sufficient number of holders to take action are delivered to the
Company in the manner prescribed in this Section 2.13. An
electronic mail or other electronic transmission consenting to an
action to be taken and transmitted by a stockholder or proxyholder,
or by a person or persons authorized to act for a stockholder or
proxyholder, shall be deemed to be written, signed and dated for
purposes of this Section to the extent permitted by law. Any such
consent shall be delivered in accordance with
Section 228(d)(1) of the DGCL. Any copy, facsimile or other
reliable reproduction of a consent in writing may be substituted or
used in lieu of the original writing for any and all purposes for
which the original writing could be used, provided that such copy,
facsimile or other reproduction shall be a complete reproduction of
the entire original writing.
(d)
Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing (including by
electronic mail or other electronic transmission as permitted by
law). If the action which is consented to is such as would have
required the filing of a certificate under any section of the DGCL
if such action had been voted on by stockholders at a meeting
thereof, then the certificate filed under such section shall state,
in lieu of any statement required by such section concerning any
vote of stockholders, that written notice and written consent have
been given as provided in Section 228 of the
DGCL.
2.14
Waiver of Notice.
Whenever notice is
required to be given under any provision of the DGCL or of the
Certificate of Incorporation or these Bylaws, a written waiver
thereof, signed by the person entitled to notice, or waiver by
electronic mail or other electronic transmission by such person,
whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in any
written waiver of notice, or any waiver of notice by electronic
transmission, unless so required by the Certificate of
Incorporation or these Bylaws.
ARTICLE III
DIRECTORS
3.1
Powers
.
The business and affairs of the
Company shall be managed by or under the direction of the Board,
who may exercise all of the powers of the Company except as
otherwise provided by the Certificate of Incorporation or
applicable law.
3.2
Number
and Terms
.
Upon the adoption of
these Bylaws, the number of directors constituting the Whole Board
shall be at least three (3). Thereafter,
the number of directors of the Company shall be
fixed solely and exclusively by resolution duly adopted from time
to time by the Board. The entire Board shall stand for election or
re-election by the stockholders at each Annual Meeting (in this
case, to the exclusion of special meetings), and each director
shall be elected to serve until his or her successor shall be
elected and duly qualified or until his or her earlier death,
resignation or removal in the manner as herein provided.
Directors need not be stockholders.
3.3
Director Resignations; Newly Created Directors and
Vacancies.
(a) Any
director may resign at any time upon written notice to the
attention of the secretary of the Company or, if there is no
secretary in office, then to the attention of any other corporate
officer or to the Board as a whole. A resignation is effective when
the resignation is delivered unless the resignation specifies a
later effective date or an effective date determined upon the
happening of an event or events. A resignation which is conditioned
upon the director failing to receive a specified vote for
reelection as a director may provide that it is irrevocable. When
one or more directors so resigns and the resignation is effective
at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in this section in
the filling of other vacancies.
(b)
Subject to the rights of the holders of any series of preferred
stock then outstanding, newly created directorships resulting from
any increase in the authorized number of directors or any vacancies
in the Board resulting from death, resignation, retirement, removal
from office or other cause shall, unless otherwise required by law
or by resolution of the Board, be filled only by a majority vote of
the directors then in office, though less than a quorum, and
directors so chosen shall serve for a term expiring at the next
Annual Meeting of stockholders
(in
this case, to the exclusion of special meetings)
or until
such director’s successor shall have been duly
elected.
(c)
Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the
provisions of the Certificate of Incorporation, vacancies and newly
created directorships of such class or classes or series may be
filled by a majority of the directors elected by such class or
classes or series thereof then in office, or by a sole remaining
director so elected.
(d) If
any vacancy or newly created directorship has not been filled by
director action as provided above, it may be filled by vote of the
stockholders entitled to vote on such director, at an annual or
special meeting of stockholders or by written consent of a majority
of the stockholders so entitled to vote, subject to the other
requirements set forth for stockholder voting at a meeting or by
written consent set forth elsewhere in these Bylaws.
(e) If
at any time, by reason of death or resignation or other cause, the
Company should have no directors in office, then any officer or any
stockholder entitled to vote or an executor, administrator, trustee
or guardian of a stockholder entitled to vote, or other fiduciary
entrusted with like responsibility for the person or estate of a
stockholder entitled to vote, may call a special meeting of
stockholders in accordance with the provisions of the Certificate
of Incorporation or these Bylaws, or may apply to the Court of
Chancery for a decree summarily ordering an election as provided in
Section 211 of the DGCL.
(f) If,
at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a
majority of the Whole Board (as constituted immediately before any
such increase), then the Court of Chancery may, upon application of
any stockholder or stockholders holding at least 10% of the total
number of the shares at the time outstanding having the right to
vote for such directors, summarily order an election to be held to
fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office as
aforesaid, which election shall be governed by the provisions of
Section 211 of the DGCL as far as applicable.
3.4
Participation in Meetings by Conference Telephone
.
Members
of the Board, or of any committee thereof, may participate in a
meeting of the Board, or any committee, by means of conference
telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at
the meeting.
3.5
Regular Meetings.
Regular
meetings of the Board may be held at such date, time and place as
shall from time to time be determined by the Board.
3.6
Special Meetings.
(a)
Special meetings of the Board may be called by the Chairman of the
Board, the President, the chief executive officer or by a majority
of the Whole Board, and shall be held at such place, date and time
as he, she or they shall fix.
(b)
Notice of the place, date and time of special meetings shall be
delivered personally or by telephone to each director or sent by
first-class mail, charges prepaid, facsimile or electronic mail,
addressed to each director at that director’s address as it
is shown on the records of the Company. If the notice is mailed, it
shall be deposited in the United States mail at least four days
before the time of the holding of the meeting. If the notice is
delivered personally, or by facsimile, electronic mail or
telephone, it shall be delivered at least twenty-four (24) hours
before the time of the holding of the meeting. The notice need not
specify the place of the meeting, if the meeting is to be held at
the principal executive office of the Company. Any and all business
may be transacted at a special meeting, unless otherwise indicated
in the notice thereof.
3.7
Quorum.
(a) At
any meeting of the Board, a majority of the Whole Board shall
constitute a quorum for all purposes, except as may be otherwise
specifically provided by statute or by the Certificate of
Incorporation. If a quorum shall fail to attend any meeting, then a
majority of the directors present may adjourn the meeting to
another place, date or time, without further notice or waiver
thereof.
(b) A
meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if
any action taken is approved by at least a majority of the required
quorum for that meeting.
3.8
Waiver of Notice.
Whenever notice of
a Board meeting is required to be given under any provision of the
DGCL or of the Certificate of Incorporation or these Bylaws, a
written waiver thereof, signed by the person entitled to notice, or
waiver by electronic mail or other electronic transmission by such
person, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the directors, or members of a committee of
directors, need be specified in any written waiver of notice or any
waiver by electronic transmission, unless so required by the
Certificate of Incorporation or these Bylaws.
3.9
Conduct of Business; Board Action by Written Consent without a
Meeting.
(a) At
any meeting of the Board, business shall be transacted in such
order and manner as the Board may from time to time determine, and
all matters shall be determined by the vote of a majority of the
directors present, except as otherwise provided in these Bylaws or
by law.
(b) Any
action required or permitted to be taken at any meeting of the
Board, or of any committee thereof, may be taken without a meeting
if all members of the Board or committee, as the case may be,
consent thereto in writing or by electronic transmission, and the
writing or writings or electronic transmission or transmissions are
filed with the minutes of proceedings of the Board or committee.
Such filings shall be in paper form if the minutes are maintained
in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
3.10
Compensation of Directors.
The
Board, or a designated committee thereof, shall have the authority
to fix the compensation of the directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board,
and may be paid a fixed sum for attendance at each meeting of the
Board, or paid a stated salary or paid other compensation as
director. No such compensation shall preclude any director from
serving the Company in any other capacity and receiving
compensation therefor. Members of special or standing committees
may be allowed compensation for attending committee
meetings.
3.11
Approval of Loans to Officers.
Subject
to applicable law, including Section 13(k) of the Exchange
Act, the Company may lend money to, or guarantee any obligation of,
or otherwise assist any officer or other employee of the Company or
of its subsidiary, including any officer or employee who is a
director of the Company or its subsidiary, whenever, in the
judgment of the directors, such loan, guaranty or assistance may
reasonably be expected to benefit the Company. The loan, guaranty
or other assistance may be with or without interest and may be
unsecured, or secured in such manner as the Board shall approve,
including, without limitation, a pledge of shares of stock of the
Company. Nothing in this section shall be deemed to deny, limit or
restrict the powers of guaranty or warranty of the Company at
common law or under any statute.
3.12
Removal of Directors.
Subject
to the rights of the holders of any series of preferred stock that
may be designated from time to time to elect additional directors
under specified circumstances, if any, as elected by the holders of
any series of preferred stock, and subject to any limitation
imposed by law, any individual director or directors may be removed
with cause only by the affirmative vote of the holders of at least
66-2/3% of the voting power of all then outstanding shares of
capital stock of the Company entitled to vote generally at an
election of directors, voting together as a single
class.
3.13
Chairman of the Board of Directors.
The
Company may have, at the discretion of the Board, a chairman of the
Board who shall not be considered solely by virtue of holding such
position to be an officer of the Company.
ARTICLE IV
COMMITTEES
4.1
Committees of Directors.
The
Board may from time to time designate committees of the Board, with
such lawfully delegable powers and duties as it thereby confers, to
serve at the pleasure of the Board and shall, for those committees
and any others provided for herein, elect a director or directors
to serve as the member or members, designating, if it desires,
other directors as alternate members who may replace any absent
members at any meeting of the committee. In the absence of any
member of any committee and any alternate member in his or her
place, the member or members of the committee present at the
meeting, whether or not he or she or they constitute a quorum, may
by unanimous vote appoint another member of the Board to act at the
meeting in the place of the absent member. Any Board committee may
create one or more subcommittees, each subcommittee to consist of
one or more members of such committee, and delegate to the
subcommittee any or all of the powers and authority of the
committee.
4.2
Committee Minutes.
Each
committee shall keep regular minutes of its meetings and maintain
them in the Company’s official minute book.
4.3
Conduct of Business.
(a)
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith,
except as otherwise provided herein or required by law. Adequate
provision shall be made for notice to members of all meetings;
one-half of the members shall constitute a quorum; and all matters
shall be determined by a majority vote of the members present.
Action may be taken by any committee without a meeting if all
members thereof consent thereto in writing or by electronic
transmission, and the writing or writings or electronic
transmission or transmissions are filed with the minutes of the
proceedings of such committee. Such filing shall be in paper form
if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic
form.
(b) The
Board may adopt rules for the governance of any committee not
inconsistent with these Bylaws.
ARTICLE V
OFFICERS
5.1
Officers.
The
officers of the Company shall be a President, a Secretary, and a
Chief Financial Officer. The Company may also have, at the
discretion of the Board, a Chief Executive Officer, one or more
Vice Presidents, one or more Assistant Secretaries, a Treasurer,
one or more Assistant Treasurers, and any such other officers as
may be appointed in accordance with these Bylaws. Any number of
offices may be held by the same person.
5.2
Appointment of Officers.
The
officers of the Company, except such officers as may be appointed
in accordance with Sections 5.3 or 5.5 of these Bylaws, shall be
appointed by the Board.
5.3
Subordinate Officers.
The
Board may appoint or empower the chief executive officer or the
president to appoint such other officers and agents as the business
of the Company may require, each of whom shall hold office for such
period, have such authority, and perform such duties as are
provided in these Bylaws or as the Board or such other officer may
from time to time determine. The Board may empower the chief
executive officer or the president to define the authority and
duties of such subordinate officers.
5.4
Removal and Resignation of Officers.
(a)
Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without
cause, by an affirmative vote of the majority of the Board at any
regular or special meeting of the board or, except in the case of
an officer chosen by the Board, by any officer upon whom such power
of removal may be conferred by the Board.
(b) Any
officer may resign at any time by giving written notice to the
secretary of the Company. Any resignation shall take effect at the
date of the receipt of that notice or at any later time specified
in that notice (unless the officer is removed before such later
time); and, unless otherwise specified in that notice, the
acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if
any, of the Company under any contract to which the officer is a
party.
5.5
Vacancies in Offices.
Any
vacancy occurring in any office of the Company shall be filled in
the manner prescribed in these Bylaws for regular appointments to
that office.
5.6
Chief Executive Officer.
Subject
to such supervisory powers, if any, as may be given by the Board to
the chairman of the Board, if any, the Chief Executive Officer of
the Company (if such an officer is appointed) shall, subject to the
control of the Board, have general supervision, direction, and
control of the business and the officers of the Company. He or she
shall preside at all meetings of the stockholders and, in the
absence or nonexistence of a chairman of the Board, at all meetings
of the Board, shall have the general powers and duties of
management usually vested in the office of chief executive officer
of a Company and shall have such other powers and duties as may be
prescribed by the Board or these Bylaws.
5.7
President.
Subject
to such supervisory powers, if any, as may be given by the Board to
the chairman of the Board, if there is one, or to the Chief
Executive Officer, if such an officer is appointed, the President
shall be the principal executive officer of the Company and shall,
subject to the control of the Board, have general supervision,
direction, and control of the business and other officers of the
Company. He or she shall have the general powers and duties of
management usually vested in the office of president of a Company
and such other powers and duties as may be prescribed by the Board
or these Bylaws.
5.8
Vice Presidents.
In the
absence or disability of the Chief Executive Officer and president,
the Vice Presidents, if any, in order of their rank as fixed by the
Board or, if not ranked, a Vice President designated by the Board,
shall perform all the duties of the President and when so acting
shall have all the powers of, and be subject to all the
restrictions upon, the president. The Vice Presidents shall have
such other powers and perform such other duties as from time to
time may be prescribed for them respectively (in order of priority)
by the Board, the Chief Executive Officer or the
President.
5.9
Secretary.
The
Secretary shall keep or cause to be kept, at the principal
executive office of the Company or such other place as the Board
may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and stockholders. The minutes
shall show the time and place of each meeting, the names of those
present at directors’ meetings or committee meetings, the
number of shares present or represented at stockholders’
meetings and the proceedings thereof.
The
secretary shall keep, or cause to be kept, at the principal
executive office of the Company or at such other place as may be
designated by the Board, a share register, or a duplicate share
register, showing the names of all stockholders and their
addresses, the number and classes of shares held by each, the
number and date of certificates evidencing such shares, and the
number and date of cancellation of every certificate surrendered
for cancellation.
The
secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board required to be given by law or
by these Bylaws. He or she shall keep the seal of the Company, if
one be adopted, in safe custody and shall have such other powers
and perform such other duties as may be prescribed by the Board, by
custom or by these Bylaws.
5.10
Chief Financial Officer.
The
Chief Financial Officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the
Company, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings, and
shares.
The
Chief Financial Officer shall deposit all moneys and other
valuables in the name and to the credit of the Company with such
depositories as may be designated by the Board. He or she shall
disburse the funds of the Company as may be ordered by the Board,
shall render to the President, the Chief Executive Officer, or the
directors, upon request, an account of all his or her transactions
as Chief Financial Officer and of the financial condition of the
Company, and shall have other powers and perform such other duties
as may be prescribed by the Board, by custom or by these
Bylaws.
5.11
Action With Respect to Securities of Other
Corporations.
Unless
otherwise directed by the Board, the chief executive officer, the
President or any officer of the Company authorized by the chief
executive officer or the president is authorized to vote and
otherwise act on behalf of the Company, in person or by proxy, at
any meeting of stockholders of or with respect to any action of
stockholders of any other corporation in which the Company may hold
securities and otherwise to exercise any and all rights and powers
which the Company may possess by reason of its ownership of
securities in such other corporation.
5.12
Delegation of Authority.
Notwithstanding any
other provision in these Bylaws, the Board may from time to time
delegate the powers or duties of any officer to any other officers
or agents.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER
AGENTS
6.1
Indemnification of Directors and Officers.
Each
person who was or is made a party to or is threatened to be made a
party to, witness or other participant in any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (a “Proceeding”), by reason of the fact
that he or she is or was a director or officer of the Company (an
“Indemnitee”), whether the basis of the Proceeding is
alleged action in an official capacity as a director or officer or
in any other capacity while serving as a director or officer, shall
be indemnified by the Company to the fullest extent authorized by
the DGCL or other applicable state law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Company to provide
broader indemnification rights than such law permitted the Company
to provide before such amendment), against all expense, liability
and loss (including attorneys’ fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by Indemnitee in connection
therewith; provided, however, the Company shall not indemnify any
such Indemnitee in connection with a Proceeding (or part thereof)
(i) initiated by such Indemnitee against the Company or any
director or officer of the Company unless the Company has joined in
or consented to the initiation of such Proceeding or (ii) made
on account of Indemnitee’s conduct which constitutes a breach
of Indemnitee’s duty of loyalty to the Company or its
stockholders, or is an act or omission not in good faith or which
involves intentional misconduct or a knowing violation of the law.
For purposes of this Section 6.1, a “director” or
“officer” of the Company includes any person who
(i) is or was a director or officer of the Company,
(ii) is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or (iii) was a director or
officer of a corporation that was a predecessor corporation of the
Company or of another enterprise at the request of such predecessor
corporation.
6.2
Indemnification of Others.
The
Company shall have the power, to the maximum extent and in the
manner permitted by the DGCL or other applicable state law, as the
same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than such law
permitted the Company to provide before such amendment), to
indemnify each of its employees and agents against all expense,
liability and loss (including attorneys’ fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such employees and
agents in connection therewith;
provided
,
however
, the Company shall not
indemnify any such employee or agent in connection with a
Proceeding (or part thereof) (i) initiated by such employee or
agent against the Company or any director or officer of the Company
unless the Company has joined in or consented to the initiation of
such Proceeding or (ii) made on account of such
employee’s or agent’s conduct which constitutes a
breach of such employee’s or agent’s duty of loyalty to
the Company or its stockholders, or is an act or omission not in
good faith or which involves intentional misconduct or a knowing
violation of the law. For purposes of this Section 6.2, an
“employee” or “agent” of the Company
includes any person other than a director or officer who
(i) is or was an employee or agent of the Company,
(ii) is or was serving at the request of the Company as an
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or (iii) was an employee
or agent of a corporation that was a predecessor corporation of the
Company or of another enterprise at the request of such predecessor
corporation.
6.3
Payment of Expenses In Advance
.
Expenses incurred
in defending any Proceeding for which indemnification is required
pursuant to Section 6.1 shall be, or for which indemnification
is permitted pursuant to Section 6.2 following authorization
thereof by the Board may be, paid by the Company in advance of the
final disposition of such Proceeding upon receipt of an undertaking
by or on behalf of the indemnified party to repay such amount if it
shall ultimately be determined by final judicial decision from
which there is no further right to appeal that the indemnified
party is not entitled to be indemnified as authorized in this
Article VI.
6.4
Indemnity Not Exclusive.
The
indemnification provided by this Article VI shall not be
deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to
action in an official capacity and as to action in another capacity
while holding such office.
6.5
Insurance.
The
Company may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such,
whether or not the Company would have the power to indemnify him or
her against such liability under the provisions of the
DGCL.
ARTICLE VII
RECORDS AND REPORTS
7.1
Maintenance and Inspection of Records.
(a) The
Company shall, either at its principal executive offices or at such
place or places as designated by the Board, keep a record of its
stockholders listing their names and addresses and the number and
class of shares held by each stockholder, a copy of these Bylaws as
amended to date, accounting books and other records.
(b) Any
stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof,
have the right during the usual hours for business to inspect for
any proper purpose the Company’s stock ledger, a list of its
stockholders, and its other books and records and to make copies or
extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person’s interest as a
stockholder. In every instance where an attorney or other agent is
the person who seeks the right to inspection, the demand under oath
shall be accompanied by a power of attorney or such other writing
that authorizes the attorney or other agent to so act on behalf of
the stockholder. The demand under oath shall be directed to the
Company at its registered office in Delaware or at its principal
place of business.
7.2
Inspection by Directors.
Any
director shall have the right to examine the Company’s stock
ledger, a list of its stockholders, and its other books and records
for a purpose reasonably related to his or her position as a
director.
ARTICLE VIII
GENERAL MATTERS
8.1
Checks.
From
time to time, the Board shall determine by resolution which person
or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are
issued in the name of or payable to the Company, and only the
persons so authorized shall sign or endorse those
instruments.
8.2
Execution of Corporate Contracts and Instruments.
The
Board may, except as otherwise provided in these Bylaws, authorize
any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of
the Company; such authority may be general or confined to specific
instances. Unless so authorized or ratified by the Board or within
the agency power of an officer, no officer, agent or employee shall
have any power or authority to bind the Company by any contract or
engagement or to pledge its credit or to render it liable for any
purpose or for any amount.
8.3
Stock Certificates.
The
shares of the Company may be represented by certificates, but shall
not be required to be so represented. Every stockholder shall be
entitled to have a certificate signed by, or in the name of the
Company by the chairman or vice-chairman of the Board, or the
President or Vice President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the
Company upon request of the stockholder. Any or all of the
signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate has ceased
to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Company with the
same effect as if he or she were such officer, transfer agent or
registrar at the date of issue. No stock certificates will be
issued in bearer form.
8.4
Special Designation on Certificates.
If the
Company is authorized to issue more than one class of stock or more
than one series of any class, then the powers, the designations,
the preferences, and the relative, participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face
or back of the certificate that the Company may issue to represent
such class or series of stock; provided, however, that, except as
otherwise provided in Section 202 of the DGCL, in lieu of the
foregoing requirements there may be set forth on the face or back
of the certificate that the Company shall issue to represent such
class or series of stock a statement that the Company will furnish
without charge to each stockholder who so requests the powers, the
designations, the preferences, and the relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
8.5
Lost Certificates.
Except
as provided in this Section 8.5, no new certificates for
shares shall be issued to replace a previously issued certificate
unless the latter is surrendered to the Company and cancelled at
the same time. The Company may issue a new certificate of stock in
the place of any certificate previously issued by it, alleged to
have been lost, stolen, mutilated or destroyed, and the Company may
require the owner of the lost, stolen, mutilated or destroyed
certificate, or the owner’s legal representative, to give the
Company an affidavit attesting to such loss, theft, mutilation or
destruction together with a bond sufficient to indemnify it against
any claim that may be made against it on account of the alleged
loss, theft, mutilation or destruction of any such certificate or
the issuance of such new certificate.
8.6
Construction; Definitions.
Unless
the context requires otherwise, the general provisions, rules of
construction, and definitions in the DGCL shall govern the
construction of these Bylaws. Without limiting the generality of
this provision, the singular number includes the plural, the plural
number includes the singular, and the term “person”
includes both a corporation (or other entity) and a natural
person.
8.7
Fiscal Year.
The
fiscal year of the Company shall be fixed by resolution of the
Board and may be changed by the Board.
8.8
Seal.
The
Company may adopt a corporate seal, which may be altered at
pleasure, and may use the same by causing it or a facsimile
thereof, to be impressed or affixed or in any other manner
reproduced.
8.9
Transfers of Stock
.
Subject
to any restrictions on transfer and unless otherwise provided by
the Board, shares of stock may be transferred only on the books of
the Company by the surrender to the Company or its transfer agent
of the certificate theretofore properly endorsed or accompanied by
a written assignment or power of attorney properly executed, with
transfer stamps (if necessary) affixed, and with such proof of the
authenticity of signature as the Company or its transfer agent may
reasonably require.
8.10
Registered Stockholders.
The
Company shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive
dividends and to vote as such owner and shall not be bound to
recognize any equitable or other claim to or interest in such share
or shares on the part of another person, whether or not it shall
have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
8.11
Facsimile Signature.
In
addition to the provisions for use of facsimile signatures
elsewhere specifically authorized in these Bylaws, facsimile
signatures of any officer or officers of the Company may be used
whenever and as authorized by the Board or a committee
thereof.
8.12
Conflict.
In the
event of any conflict between any provision in these Bylaws and in
the Corporation’s Certificate of Incorporation, the provision
in the Certificate of Incorporation shall control.
ARTICLE IX
AMENDMENTS
The
Bylaws of the Company may be adopted, amended or repealed by the
stockholders entitled to vote;
provided
,
however
, that no bylaw may be
adopted, amended or repealed by the stockholders except by the vote
or written consent of the holders of at least 66-2/3% of the voting
power of all then outstanding shares of capital stock of the
Company entitled to vote generally at an election of directors,
voting together as a single class. The Company may, in its
Certificate of Incorporation, confer the power to adopt, amend or
repeal Bylaws upon the Board. The fact that such power has been so
conferred upon the Board shall not divest the stockholders of the
power, nor limit their power, to adopt, amend or repeal Bylaws as
set forth in this Article IX.