BYLAWS
OF
REKOR SYSTEMS, INC.
A Delaware Corporation
AMENDED AND RESTATED
BYLAWS
OF
REKOR SYSTEMS, INC.
(A Delaware corporation)
As adopted and with effect on April
26
, 2019
ARTICLE I
CORPORATE OFFICES
1.1
Registered Office.
The
registered office of Rekor Systems, 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 Company 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.
