BYLAWS
OF
MINIM, INC.
(A Delaware corporation)
_______
As amended and restated through June 3, 2020
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ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meeting. The annual meeting of
the stockholders of the corporation shall be held on such date as shall be
fixed by the Board of Directors, at such time and place within or
without the State of Delaware as may be designated in the notice of
meeting. If the day fixed for the annual meeting shall fall on a
legal holiday, the meeting shall be held on the next succeeding day
not a legal holiday. If the annual meeting is omitted on the day
herein provided, a special meeting may be held in place thereof,
and any business transacted at such special meeting in lieu of
annual meeting shall have the same effect as if transacted or held
at the annual meeting. At the discretion of the Board of Directors,
the meeting may be conducted partially or solely by remote
communication to the extent permitted by law.
Section 1.2 Special Meetings. Special meetings of
the stockholders may be called at any time by the chairman of the
board of directors or by the board of directors. Special meetings
of the stockholders shall be held at such time, date and place
within or outside of the State of Delaware as may be designated in
the notice of such meeting. At the discretion of the Board of
Directors, the meeting may be conducted partially or solely by
remote communication to the extent permitted by law.
Section 1.3 Notice of Meeting.
(a) A written notice
stating the place, if any, date, and hour of each meeting of the
stockholders, and, in the case of a special meeting, the purposes
for which the meeting is called, shall be given to each stockholder
entitled to vote at such meeting, and to each stockholder who,
under the Certificate of Incorporation or these Bylaws, is entitled
to such notice, by delivering such notice to such person or leaving
it at their residence or usual place of business, or by mailing it
to such stockholder at his address as it appears upon the books of
the corporation at least ten days and not more than 60 days before
the meeting. Such notice shall be given by the secretary, an
assistant secretary, or any other officer or person designated
either by the secretary or by the person or persons calling the
meeting.
(b) The requirement of
notice to any stockholder may be waived (i) by a written waiver of
notice, executed before or after the meeting by the stockholder or
his attorney thereunto duly authorized, and filed with the records
of the meeting, (ii) if communication with such stockholder is
unlawful, (iii) by attendance at the meeting without protesting
prior thereto or at its commencement the lack of notice, or (iv) as
otherwise excepted by law. A waiver of notice of any regular or
special meeting of the stockholders need not specify the purposes
of the meeting.
(c) If a meeting is
adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place, if any, are announced at
the meeting at which the adjournment is taken, except that if the
adjournment is for more than 30 days, or if after the adjournment a
new record date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 1.4 Business
at Annual or Special Meetings.
(a) At a meeting of the
stockholders, only such nominations of persons for the election of
directors and such other business shall be conducted as shall have
been properly brought before the meeting. Nominations for the election of
directors or proposals of other business at an annual meeting of
the stockholders, or special meeting in lieu of the annual meeting,
may be made by the Board of Directors or by any stockholder
entitled to vote in the election of directors at the meeting
pursuant to Section 1.4(b) or Section 1.4(c), as applicable.
Stockholders entitled to vote in such election may nominate one or
more persons for the election as directors or propose other
business only if written notice of such stockholder’s intent
to make such nomination or other business proposal has been given
either by personal delivery, overnight (receipted) courier or by
United States mail, postage prepaid, to the secretary of the
Corporation not later than one hundred twenty days prior to the
anniversary date of the immediately preceding annual meeting or
special meeting in lieu thereof.
(b) For nominations for
the election of directors by a stockholder, such notice shall set
forth: (i) the name and address of the stockholder who intends to
make the nomination and of the persons or person to be nominated;
(ii) a representation that the stockholder is a holder of record of
stock of the Corporation and entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice; (iii) a description
of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (iv) such other information regarding each
nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of
the Securities and Exchange Commission; and (v) the consent of each
nominee to serve as a director of the Corporation if so elected.
The presiding officer of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing
procedure.
(c) For business
proposals other than the nomination for the election of directors
by a stockholder, such notice shall set forth: (i) as to each
matter the stockholder proposes to bring before the annual meeting:
a brief description of the business desired to be brought before
the annual meeting, the text of the proposal, and the reasons for
conducting such business at the annual meeting; and (ii) as to the
stockholder giving the notice and the beneficial owner, if any, on
whose behalf the proposal is being made: the name and address of
such stockholder, as they appear on the corporation’s books,
and of such beneficial owner, the class and series and number of
shares of stock of the corporation that are, directly or
indirectly, owned, beneficially or of record, by such stockholder
and such beneficial owner, and a description of any material
interest of such stockholder or such beneficial owner and the
respective affiliates and associates of, or others acting in
concert with, such stockholder or such beneficial owner in such
business. The presiding officer of the meeting may refuse to
acknowledge or otherwise permit to be brought before the meeting
any proposal not made in compliance with the foregoing
procedure.
Section 1.5 Quorum. The holders of one third of all
stock issued, outstanding and entitled to vote at a meeting shall
constitute a quorum. Any meeting may be adjourned from time to time
by a majority of the votes properly cast upon the question, whether
or not a quorum is present.
Section 1.6 Voting and Proxies. Stockholders shall
have one vote for each share of stock entitled to vote owned by
them of record according to the books of the corporation, unless
otherwise provided by law or by the Certificate of Incorporation.
Stockholders may vote either in person or by written proxy, but no
proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. Proxies shall be
filed with the secretary of the meeting, or of any adjournment
thereof. Except as otherwise limited therein, proxies shall entitle
the persons authorized thereby to vote at any adjournment of such
meeting. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the
challenger. A proxy with respect to stock held in the name of two
or more persons shall be valid if executed by one of them unless at
or prior to exercise of the proxy the corporation receives a
specific written notice to the contrary from any one of
them.
Section 1.7 Action at Meeting. When a quorum is
present at any meeting, a plurality of the votes properly cast for
election to any office shall elect to such office, and a majority
of the votes properly cast upon any question other than election to
an office shall decide such question, except where a larger vote is
required by law, the Certificate of Incorporation or these Bylaws.
No ballot shall be required for any election unless requested by a
stockholder present or represented at the meeting and entitled to
vote in the election.
Section 1.8 Action Without Meeting. All action
required or permitted to be taken by the stockholders must be taken
at a meeting duly called and held in accordance with law and in
accordance with this Certificate of Incorporation and these
Bylaws.
Section 1.9 Voting of Shares of Certain
Holders.
(a) Shares of stock of
the corporation standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent, or proxy
as the Bylaws of such corporation may prescribe, or, in the absence
of such provision, as the board of directors of such corporation
may determine.
(b) Shares of stock of
the corporation standing in the name of a deceased person, a minor
ward or an incompetent person, may be voted by his administrator,
executor, court-appointed guardian or conservator without a
transfer of such shares into the name of such administrator,
executor, court appointed guardian or conservator. Shares of
capital stock of the corporation standing in the name of a trustee
or fiduciary may be voted by such trustee or
fiduciary.
(c) Shares of stock of
the corporation standing in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer thereof
into his name if authority so to do be contained in an appropriate
order of the court by which such receiver was
appointed.
(d) A stockholder whose
shares are pledged shall be entitled to vote such shares unless in
the transfer by the pledgor on the books of the corporation he
expressly empowered the pledgee to vote thereon, in which case only
the pledgee or its proxy shall be entitled to vote the shares so
transferred.
(e) Shares of its own
stock belonging to this corporation shall not be voted, directly or
indirectly, at any meeting and shall not be counted in determining
the total number of outstanding shares at any given time, but
shares of its own stock held by the corporation in a fiduciary
capacity may be voted and shall be counted in determining the total
number of outstanding shares.
Section 1.10 Stockholder Lists. The secretary (or
the corporation’s transfer agent or other person authorized
by these Bylaws or by law) shall prepare and make, at least ten
days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours,
for a period of at least ten days prior to the meeting, either at
(i) the corporation’s principal place of business, (ii) at
the place where the meeting is to be held, or (iii) by making it
available on an electronic network. The list shall also be produced
and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is
present.
ARTICLE II
BOARD
OF DIRECTORS
Section 2.1 Powers. Except as reserved to the
stockholders by law, by the Certificate of Incorporation or by
these Bylaws, the business of the corporation shall be managed
under the direction of the board of directors, who shall have and
may exercise all of the powers of the corporation. In particular,
and without limiting the foregoing, the board of directors shall
have the power to issue or reserve for issuance from time to time
the whole or any part of the capital stock of the corporation which
may be authorized from time to time to such person, for such
consideration and upon such terms and conditions as they shall
determine, including the granting of options, warrants or
conversion or other rights to stock.
Section 2.2 Number of Directors; Qualifications.
The board of directors shall consist of such number of directors,
as shall be fixed initially by the incorporator(s) and thereafter
by the board of directors. No director need be a
stockholder.
Section 2.3 Election of Directors. The initial
board of directors shall be designated in the certificate of
incorporation, or if not so designated, elected by the
incorporator(s) at the first meeting thereof. Thereafter, directors
shall be elected by the stockholders at their annual meeting or at
any special meeting the notice of which specifies the election of
directors as an item of business for such meeting.
Section 2.4 Chairman of the Board. The board of
directors may appoint a chairman of the board. If the board of directors appoints a chairman of
the board, he shall perform such duties and possess such powers as
are assigned to him by the board of directors. The board of
directors may designate the chairman of the board as chief
executive officer.
Section 2.5 Vacancies; Reduction of the Board. In
the case of any vacancy in the board of directors from death,
resignation, disqualification or other cause, including a vacancy
resulting from enlargement of the board, the election of a director
to fill such vacancy shall be by vote of a majority of the
directors then in office, whether or not constituting a
quorum.
Section 2.6 Enlargement of the Board. The board of
directors may be enlarged by the stockholders at any meeting or by
vote of a majority of the directors then in office.
Section 2.7 Tenure and Resignation. Except as
otherwise provided by law, by the Certificate of Incorporation or
by these Bylaws, directors shall hold office until the next annual
meeting of stockholders and thereafter until their successors are
chosen and qualified. Any director may resign by delivering or
mailing postage prepaid a written resignation to the corporation at
its principal office or to the chairman of the board of directors,
the president, secretary or assistant secretary, if any. Such
resignation shall be effective upon receipt unless it is specified
to be effective at some other time or upon the happening of some
other event.
Section 2.8 Removal. A director, whether elected by
the stockholders or directors, may be removed from office with or
without cause at any annual or special meeting of stockholders by
vote of a majority of the stockholders entitled to vote in the
election of such directors, or for cause by a vote of a majority of
the directors then in office; provided, however, that a director
may be removed for cause only after reasonable notice and
opportunity to be heard before the body proposing to remove
him.
Section 2.9 Meetings. Regular meetings of the board
of directors may be held without call or notice at such times and
such places within or without the State of Delaware as the board
may, from time to time, determine, provided that notice of the
first regular meeting following any such determination shall be
given to directors absent from such determination. A regular
meeting of the board of directors shall be held without notice
immediately after, and at the same place as, the annual meeting of
the stockholders or the special meeting of the stockholders held in
place of such annual meeting, unless a quorum of the directors is
not then present. Special meetings of the board of directors may be
held at any time and at any place designated in the call of the
meeting when called by the chairman of the board of directors or
two or more directors. Members of the board of directors or any
committee elected thereby may participate in a meeting of such
board or committee by means of a conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other at the same time,
and participation by such means shall constitute presence in person
at the meeting.
Section 2.10 Notice of Meeting. It shall be
sufficient notice to a director to send notice (i) by mail at least
72 hours before the meeting addressed to such person at his usual
or last known business or residence address, or (ii) in person, by
telephone, facsimile transmission or electronic transmission to the
extent provided in Article VIII, at least 24 hours before the
meeting. Notice shall be given by the secretary, or in his absence
or unavailability, may be given by an assistant secretary, if any,
or by the officer or directors calling the meeting. The requirement
of notice to any director may be waived by a written waiver of
notice, executed by such person before or after the meeting or
meetings, and filed with the records of the meeting, or by
attendance at the meeting without protesting prior thereto or at
its commencement the lack of notice. A notice or waiver of notice
of a directors’ meeting need not specify the purposes of the
meeting.
Section 2.11 Agenda. Any lawful business may be
transacted at a meeting of the board of directors, notwithstanding
the fact that the nature of the business may not have been
specified in the notice or waiver of notice of the
meeting.
Section 2.12 Quorum.At any meeting of the board of
directors, a majority of the directors then in office shall
constitute a quorum for the transaction of business. Any meeting
may be adjourned by a majority of the votes cast upon the question,
whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
Section 2.13 Action at Meeting. Any motion adopted
by vote of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the board of
directors, except where a different vote is required by law, by the
Certificate of Incorporation or by these Bylaws. The assent in
writing of any director to any vote or action of the directors
taken at any meeting, whether or not a quorum was present and
whether or not the director had or waived notice of the meeting,
shall have the same effect as if the director so assenting was
present at such meeting and voted in favor of such vote or
action.
Section 2.14 Action Without Meeting. Any action by
the directors may be taken without a meeting if all of the
directors consent to the action in writing and the consents are
filed with the records of the directors’ meetings. Such
consent shall be treated for all purposes as a vote of the
directors at a meeting.
Section 2.15 Committees. The board of directors may,
by the affirmative vote of a majority of the directors then in
office, appoint an executive committee or other committees
consisting of one or more directors and may by vote delegate to any
such committee some or all of their powers except those which by
law, the Certificate of Incorporation or these Bylaws they may not
delegate. In the absence or disqualification of a member of a
committee, the members of the committee present and not
disqualified, whether or not they constitute a quorum, may by
unanimous vote appoint another member of the board of directors to
act at the meeting in place of the absence or disqualified member.
Unless the board of directors shall otherwise provide, any such
committee may make rules for the conduct of its business, but
unless otherwise provided by the board of directors or such rules,
its meetings shall be called, notice given or waived, its business
conducted or its action taken as nearly as may be in the same
manner as is provided in these Bylaws with respect to meetings or
for the conduct of business or the taking of actions by the board
of directors. The board of directors shall have power at any time
to fill vacancies in, change the membership of, or discharge any
such committee at any time. The board of directors shall have power
to rescind any action of any committee, but no such rescission
shall have retroactive effect.
ARTICLE III
OFFICERS
Section 3.1 Enumeration. The officers shall consist
of a president, a treasurer, a secretary and such other officers
and agents (including a chairman of the board, one or more vice
presidents, assistant treasurers and assistant secretaries), as the
board of directors may, in their discretion,
determine.
Section 3.2 Election. The president, treasurer and
secretary shall be elected annually by the directors at their first
meeting following the annual meeting of the stockholders or any
special meeting held in lieu of the annual meeting. Other officers
may be chosen by the directors at such meeting or at any other
meeting.
Section 3.3 Qualification. An officer may, but need
not, be a director or stockholder. Any two or more offices may be
held by the same person. Any officer may be required by the
directors to give bond for the faithful performance of his duties
to the corporation in such amount and with such sureties as the
directors may determine. The premiums for such bonds may be paid by
the corporation.
Section 3.4 Tenure. Except as otherwise provided by
the Certificate of Incorporation or these Bylaws, the term of
office of each officer shall be for one year or until his successor
is elected and qualified or until his earlier resignation or
removal.
Section 3.5 Removal. Any officer may be removed
from office, with or without cause, by the affirmative vote of a
majority of the directors then in office; provided, however, that
an officer may be removed for cause only after reasonable notice
and opportunity to be heard by the board of directors prior to
action thereon.
Section 3.6 Resignation. Any officer may resign by
delivering or mailing postage prepaid a written resignation to the
corporation at its principal office or to the chairman of the board
of directors, president, secretary, or assistant secretary, if any,
and such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening
of some event.
Section 3.7 Vacancies. A vacancy in any office
arising from any cause may be filled for the unexpired portion of
the term by the board of directors.
Section 3.8 Chief Executive Officer. The
board of directors may designate the
chairman of the board as chief executive officer. If the board of
directors designates the chairman of the board as chief executive
officer, he shall have such duties and powers as are commonly
incident to the office of chief executive officer and such duties
and powers as the board of directors shall from time to time
designate.
Section 3.9 President. The
president shall be the chief executive officer of the corporation,
unless a chairman of the board is so
designated and subject to any executive powers of the chairman of
the board designated by the board of directors. Unless a chairman
of the board is so designated or except as otherwise voted by the
board of directors, the president shall preside at all meetings of
the stockholders and of the board of directors at which present.
The president shall have such duties and powers as are commonly
incident to the office and such duties and powers as the board of
directors shall from time to time designate.
Section 3.10 Vice President(s). The vice
president(s), if any, shall have such powers and perform such
duties as the board of directors may from time to time
determine.
Section 3.11 Chief Financial Officer, Treasurer and
Assistant Treasurers. The treasurer, or if the board of directors so determines, the vice
president, finance or the chief financial officer, subject to the
direction and under the supervision and control of the board of
directors, shall have general charge of the financial affairs of
the corporation. The treasurer shall have custody of all funds,
securities and valuable papers of the corporation, except as the
board of directors may otherwise provide. The treasurer shall keep
or cause to be kept full and accurate records of account which
shall be the property of the corporation, and which shall be always
open to the inspection of each elected officer and director of the
corporation. The treasurer shall deposit or cause to be deposited
all funds of the corporation in such depository or depositories as
may be authorized by the board of directors. The treasurer shall
have the power to endorse for deposit or collection all notes,
checks, drafts, and other negotiable instruments payable to the
corporation. The treasurer shall perform such other duties as are
incidental to the office, and such other duties as may be assigned
by the board of directors. All of the duties of the treasurer may
be performed by the vice president, finance and/or the chief
financial officer, in the discretion of the board of
directors.
Assistant
treasurers, if any, shall have such powers and perform such duties
as the board of directors may from time to time
determine.
Section 3.12 Secretary and Assistant Secretaries.
The secretary or an assistant secretary shall record, or cause to
be recorded, all proceedings of the meetings of the stockholders
and directors (including committees thereof) in the book of records
of this corporation. The record books shall be open at reasonable
times to the inspection of any stockholder, director, or officer.
The secretary or an assistant secretary shall notify the
stockholders and directors, when required by law or by these
Bylaws, of their respective meetings, and shall perform such other
duties as the directors and stockholders may from time to time
prescribe. The secretary or an assistant secretary shall have the
custody and charge of the corporate seal, and shall affix the seal
of the corporation to all instruments requiring such seal, and
shall certify under the corporate seal the proceedings of the
directors and of the stockholders, when required. In the absence of
the secretary or an assistant secretary at any such meeting, a
temporary secretary shall be chosen who shall record the
proceedings of the meeting in the aforesaid books.
Assistant
secretaries, if any, shall have such powers and perform such duties
as the board of directors may from time to time
designate.
Section 3.13 Other Powers and Duties. Subject to
these Bylaws and to such limitations as the board of directors may
from time to time prescribe, the officers of the corporation shall
each have such powers and duties as generally pertain to their
respective offices, as well as such powers and duties as from time
to time may be conferred by the board of directors.
ARTICLE IV
CAPITAL
STOCK
Section 4.1 Stock Certificates.
(a) Each stockholder
shall be entitled to a certificate representing the number of
shares of the capital stock of the corporation owned by such person
in such form as shall, in conformity to law, be prescribed from
time to time by the board of directors. Each certificate shall be
signed by the president or vice president and treasurer or
assistant treasurer or such other officers designated by the board
of directors from time to time as permitted by law, shall bear the
seal of the corporation, and shall express on its face its number,
date of issue, class, the number of shares for which, and the name
of the person to whom, it is issued. The corporate seal and any or
all of the signatures of corporation officers may be facsimile if
the stock certificate is manually counter-signed by an authorized
person on behalf of a transfer agent or registrar other than the
corporation or its employee.
(b) If an officer,
transfer agent or registrar who has signed, or whose facsimile
signature has been placed on, a certificate shall have ceased to be
such before the certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer,
transfer agent or registrar at the time of its issue.
Section 4.2 Transfer of Shares. Title to a
certificate of stock and to the shares represented thereby shall be
transferred only on the books of the corporation by delivery to the
corporation or its transfer agent of the certificate properly
endorsed, or by delivery of the certificate accompanied by a
written assignment of the same, or a properly executed written
power of attorney to sell, assign or transfer the same or the
shares represented thereby. Upon surrender of a certificate for the
shares being transferred, a new certificate or certificates shall
be issued according to the interests of the parties.
Section 4.3 Record Holders. Except as otherwise may
be required by law, by the Certificate of Incorporation or by these
Bylaws, the corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock
for all purposes, including the payment of dividends and the right
to vote with respect thereto, regardless of any transfer, pledge or
other disposition of such stock, until the shares have been
transferred on the books of the corporation in accordance with the
requirements of these Bylaws. It shall be the duty of each
stockholder to notify the corporation of his post office
address.
Section 4.4 Record Date.
(a) In order that the
corporation may determine the stockholders entitled to receive
notice of or to vote at any meeting of stockholders or any
adjournments thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other
lawful action, the board of directors may fix, in advance, a record
date, which shall not be more than sixty days prior to any other
action. In such case only stockholders of record on such record
date shall be so entitled notwithstanding any transfer of stock on
the books of the corporation after the record date.
(b) If no record date
is fixed: (i) the record date for determining stockholders entitled
to receive notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is
held; 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 of directors adopts the resolution relating
thereto.
Section 4.5 Transfer Agent and Registrar for Shares of
Corporation. The board of directors may appoint a transfer
agent and a registrar of the certificates of stock of the
corporation. Any transfer agent so appointed shall maintain, among
other records, a stockholders’ ledger, setting forth the
names and addresses of the holders of all issued shares of stock of
the corporation, the number of shares held by each, the certificate
numbers representing such shares, and the date of issue of the
certificates representing such shares. Any registrar so appointed
shall maintain, among other records, a share register, setting
forth the total number of shares of each class of shares which the
corporation is authorized to issue and the total number of shares
actually issued. The stockholders’ ledger and the share
register are hereby identified as the stock transfer books of the
corporation; but as between the stockholders’ ledger and the
share register, the names and addresses of stockholders, as they
appear on the stockholders’ ledger maintained by the transfer
agent shall be the official list of stockholders of record of the
corporation. The name and address of each stockholder of record, as
they appear upon the stockholders’ ledger, shall be
conclusive evidence of who are the stockholders entitled to receive
notice of the meetings of stockholders, to vote at such meetings,
to examine a complete list of the stockholders entitled to vote at
meetings, and to own, enjoy and exercise any other property or
rights deriving from such shares against the corporation.
Stockholders, but not the corporation, its directors, officers,
agents or attorneys, shall be responsible for notifying the
transfer agent, in writing, of any changes in their names or
addresses from time to time, and failure to do so will relieve the
corporation, its other stockholders, directors, officers, agents
and attorneys, and its transfer agent and registrar, of liability
for failure to direct notices or other documents, or pay over or
transfer dividends or other property or rights, to a name or
address other than the name and address appearing in the
stockholders’ ledger maintained by the transfer
agent.
Section 4.6 Loss of Certificates. In case of the
loss, destruction or mutilation of a certificate of stock, a
replacement certificate may be issued in place thereof upon such
terms as the board of directors may prescribe, including, in the
discretion of the board of directors, a requirement of bond and
indemnity to the corporation.
Section 4.7 Restrictions on Transfer. Every
certificate for shares of stock which are subject to any
restriction on transfer, whether pursuant to the Certificate of
Incorporation, the Bylaws or any agreement to which the corporation
is a party, shall have the fact of the restriction noted
conspicuously on the certificate and shall also set forth on the
face or back either the full text of the restriction or a statement
that the corporation will furnish a copy to the holder of such
certificate upon written request and without charge.
Section 4.8 Multiple Classes or Series of Stock.
The amount and classes of the capital stock and the par value, if
any, of the shares, shall be as fixed in the Certificate of
Incorporation. At all times when there are two or more classes or
series of stock, the several classes or series of stock shall
conform to the description and the terms and have the respective
preferences, voting powers, restrictions and qualifications set
forth in the Certificate of Incorporation and these Bylaws. Every
certificate issued when the corporation is authorized to issue more
than one class or series of stock shall set forth on its face or
back either (i) the full text of the preferences, voting powers,
qualifications and special and relative rights of the shares of
each class and series authorized to be issued, or (ii) a statement
of the existence of such preferences, powers, qualifications and
rights, and a statement that the corporation will furnish a copy
thereof to the holder of such certificate upon written request and
without charge.
ARTICLE V
DIVIDENDS
Section 5.1 Declaration of Dividends. Except as
otherwise required by law or by the Certificate of Incorporation,
the board of directors may, in its discretion, declare what, if
any, dividends shall be paid from the surplus or from the net
profits of the corporation for the current or preceding fiscal
year, or as otherwise permitted by law. Dividends may be paid in
cash, in property, in shares of the corporation’s stock, or
in any combination thereof. Dividends shall be payable upon such
dates as the board of directors may designate.
Section 5.2 Reserves. Before the payment of any
dividend and before making any distribution of profits, the board
of directors, from time to time and in its absolute discretion,
shall have power to set aside out of the surplus or net profits of
the corporation such sum or sums as the board of directors deems
proper and sufficient as a reserve fund to meet contingencies or
for such other purpose as the board of directors shall deem to be
in the best interests of the corporation, and the board of
directors may modify or abolish any such reserve.
ARTICLE VI
POWERS
OF OFFICERS TO CONTRACT WITH THE CORPORATION
Any
and all of the directors and officers of the corporation,
notwithstanding their official relations to it, may enter into and
perform any contract or agreement of any nature between the
corporation and themselves, or any and all of the individuals from
time to time constituting the board of directors of the
corporation, or any firm or corporation in which any such director
may be interested, directly or indirectly, whether such individual,
firm or corporation thus contracting with the corporation shall
thereby derive personal or corporate profits or benefits or
otherwise; provided, that (i) the material facts of such interest
are disclosed or are known to the board of directors or committee
thereof which authorizes such contract or agreement; (ii) if the
material facts as to such person’s relationship or interest
are disclosed or are known to the stockholders entitled to vote
thereon, and the contract is specifically approved in good faith by
a vote of the stockholders; or (iii) the contract or agreement is
fair as to the corporation as of the time it is authorized,
approved or ratified by the board of directors, a committee
thereof, or the stockholders. Any director of the corporation who
is interested in any transaction as aforesaid may nevertheless be
counted in determining the existence of a quorum at any meeting of
the board of directors which shall authorize or ratify any such
transaction. This Article shall not be construed to invalidate any
contract or other transaction which would otherwise be valid under
the common or statutory law applicable thereto.
ARTICLE VII
INDEMNIFICATION
Section 7.1 Definitions. For purposes of this
Article VII the following terms shall have the meanings
indicated:
“Corporate
Status” describes the status of a person who is or was a
director, officer, employee, agent, trustee or fiduciary of the
Corporation or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which
such person is or was serving at the express written request of the
corporation.
“Court”
means the Court of Chancery of the State of Delaware, or any other
court in which a Proceeding in respect of indemnification may
properly be brought.
“Covered
Person” means any person who has a Corporate Status who the
corporation, pursuant to the provisions of Section 7.9 hereof,
determines is entitled to indemnification as provided herein. It
shall in each case include such person’s legal
representatives, heirs, executors and administrators.
“Disinterested”
describes any individual, whether or not that individual is a
director, officer, employee or agent of the corporation who is not
and was not and is not threatened to be made a party to the
Proceeding in respect of which indemnification, advancement of
expenses or other action, is sought by a Covered
Person.
“Expenses”
shall include, without limitation, all reasonable attorneys’
fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating or being or preparing to be a
witness in a Proceeding.
“Good
Faith” shall mean a Covered Person having acted in good faith
and in a manner such Covered Person reasonably believed to be in or
not opposed to the best interests of the corporation or, in the
case of an employee benefit plan, the best interests of the
participants or beneficiaries of said plan, as the case may be,
and, with respect to any Proceeding which is criminal in nature,
having had no reasonable cause to believe such Covered
Person’s conduct was unlawful.
“Independent
Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and may include law firms
or members thereof that are regularly retained by the corporation
but not by any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the
term “Independent Counsel” shall not include any person
who, under the standards of professional conduct then prevailing
and applicable to such counsel, would have a conflict of interest
in representing either the corporation or the Covered Person in an
action to determine the Covered Person’s rights under this
Article.
“Proceeding”
includes any actual, threatened or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation
(including any internal corporate investigation), administrative
hearing or any other proceeding, whether civil, criminal,
administrative or investigative, other than one initiated by the
Covered Person, but including one initiated by a Covered Person for
the purpose of enforcing such Covered Person’s rights under
this Article to the extent provided in Section 7.14 of this
Article. “Proceeding” shall not include any
counterclaim brought by any Covered Person other than one arising
out of the same transaction or occurrence that is the subject
matter of the underlying claim.
Section 7.2 Right to Indemnification in General.
The corporation may indemnify, and advance Expenses to, each
Covered Person who is, was or is threatened to be made a party or
is otherwise involved in any Proceeding, as provided in this
Article and to the fullest extent permitted by applicable law in
effect on the date hereof and to such greater extent as applicable
law may hereafter from time to time permit.
Section 7.3 Proceedings Other Than Proceedings in the
Right of the Corporation. Each Covered Person may be
indemnified if, by reason of such Covered Person’s Corporate
Status, such Covered Person is or is threatened to be made a party
to or is otherwise involved in any Proceeding, other than a
Proceeding by or in the right of the corporation. Such Covered
Person may be indemnified against Expenses, judgments, penalties,
fines and amounts paid in settlements, actually and reasonably
incurred by such Covered Person or on such Covered Person’s
behalf in connection with such Proceeding or any claim, issue or
matter therein, if such Covered Person acted in Good
Faith.
Section 7.4 Proceedings by or in the Right of the
Corporation. Each Covered Person may be indemnified if, by
reason of such Covered Person’s Corporate Status, such
Covered Person is, or is threatened to be made, a party to or is
otherwise involved in any Proceeding brought by or in the right of
the corporation to procure a judgment in its favor. Such Covered
Person may be indemnified against Expenses, judgments, penalties,
and amounts paid in settlement, actually and reasonably incurred by
such Covered Person or on such Covered Person’s behalf in
connection with such Proceeding if such Covered Person acted in
Good Faith. Notwithstanding the foregoing, no such indemnification
shall be made in respect of any claim, issue or matter in such
Proceeding as to which such Covered Person shall have been adjudged
to be liable to the corporation if applicable law prohibits such
indemnification; provided, however, that, if applicable law so
permits, indemnification shall nevertheless be made by the
corporation in such event if and only to the extent that the Court
which is considering the matter shall so determine.
Section 7.5 Indemnification of a Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of
this Article, to the extent that a present or former director or
officer or any other person who has a Corporate Status is, by
reason of such Corporate Status, a party to or is otherwise
involved in and is successful, on the merits or otherwise, in any
Proceeding, such person shall be indemnified to the maximum extent
permitted by law, against all Expenses, judgments, penalties,
fines, and amounts paid in settlement, actually and reasonably
incurred by such person or on such person’s behalf in
connection therewith. If such person is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such
Proceeding, the corporation shall indemnify such person to the
maximum extent permitted by law, against all Expenses, judgments,
penalties, fines, and amounts paid in settlement, actually and
reasonably incurred by such person or on such person’s behalf
in connection with each successfully resolved claim, issue or
matter. The termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or
matter.
Section 7.6 Indemnification for Expenses of a
Witness. Notwithstanding any other provision of this
Article, to the extent that a Covered Person is, by reason of such
Covered Person’s Corporate Status, a witness in any
Proceeding, such Covered Person shall be indemnified against all
Expenses actually and reasonably incurred by such Covered Person or
on such Covered Person’s behalf in connection
therewith.
Section 7.7 Advancement of Expenses.
(a) Notwithstanding any
provision to the contrary in this Article, the corporation may
advance all reasonable Expenses which were incurred by or on behalf
of a present director or officer by reason of such person’s
Corporate Status, in connection with any Proceeding, within 20 days
after the receipt by the corporation of a statement or statements
from such person requesting such advance or advances, whether prior
to or after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence the Expenses incurred by the
person and shall include or be preceded or accompanied by an
undertaking by or on behalf of the person to repay any Expenses if
such person shall be adjudged to be not entitled to be indemnified
against such Expenses. Any advance and undertakings to repay made
pursuant to this paragraph shall be unsecured and interest-free.
Advancement of Expenses pursuant to this paragraph shall not
require approval of the board of directors or the stockholders of
the corporation, or of any other person or body. The secretary of
the corporation shall promptly advise the Board in writing of the
request for advancement of Expenses, of the amount and other
details of the advance and of the undertaking to make repayment
provided pursuant to this paragraph.
(b) Advancement of
expenses to any other Covered Person shall be upon such terms and
conditions as the board of directors may determine
appropriate.
Section 7.8 Notification and Defense of
Claim.
(a) Promptly after
receipt by any person who has a Corporate Status of a notice of the
commencement of any Proceeding, such person shall, if a claim is to
be made against the corporation under this Article, notify the
corporation of the commencement of the Proceeding. The omission of
such notice will not relieve the corporation from any liability
which it may have to such person otherwise than under this Article.
With respect to any such Proceedings as to which the corporation
determines to provide indemnification:
(i) The corporation
will be entitled to participate in the defense at its own
expense.
(ii) Except
as otherwise provided below, the corporation (jointly with any
other indemnifying party similarly notified) will be entitled to
assume the defense with counsel reasonably satisfactory to the
Covered Person. After notice from the corporation to the Covered
Person of its election to assume the defense of a suit, the
corporation will not be liable to the Covered Person under this
Article for any legal or other expenses subsequently incurred by
the Covered Person in connection with the defense of the Proceeding
other than reasonable costs of investigation or as otherwise
provided below.
(b) The Covered Person
shall have the right to employ his own counsel in such Proceeding
but the fees and expenses of such counsel incurred after notice
from the corporation of its assumption of the defense shall be at
the expense of the Covered Person except as follows. The fees and
expenses of counsel shall be at the expense of the corporation if
(i) the employment of counsel by the Covered Person has been
authorized by the corporation, (ii) the Covered Person shall have
concluded reasonably that there may be a conflict of interest
between the corporation and the Covered Person in the conduct of
the defense of such action and such conclusion is confirmed in
writing by the corporation’s outside counsel regularly
employed by it in connection with corporate matters, or (iii) the
corporation shall not in fact have employed counsel to assume the
defense of such Proceeding. The corporation shall be entitled to
participate in, but shall not be entitled to assume the defense of,
any Proceeding brought by or in the right of the corporation or as
to which the Covered Person shall have made the conclusion provided
for in (ii) above and such conclusion shall have been so confirmed
by the corporation’s said outside counsel.
(c) Notwithstanding any
provision of this Article to the contrary, the corporation shall
not be liable to indemnify the Covered Person under this Article
for any amounts paid in settlement of any Proceeding effected
without its written consent. The corporation shall not settle any
Proceeding or claim in any manner which would impose any penalty,
limitation or disqualification of the Covered Person for any
purpose without such Covered Person’s written consent.
Neither the corporation nor the Covered Person will unreasonably
withhold their consent to any proposed settlement.
(d) If it is determined
that the Covered Person is entitled to indemnification other than
as afforded under subparagraph (b) above, payment to the Covered
Person of the additional amounts for which he is to be indemnified
shall be made within 10 days after such determination.
Section 7.9 Procedures.
(a) Method of
Determination For Present Officers and Directors. A determination
(as provided for by this Article or if required by applicable law
in the specific case) with respect to entitlement to
indemnification by a person who at the date of determination is a
director or officer shall be made either (i) by a majority vote of
Disinterested directors, even though less than a quorum, or (ii) a
committee of Disinterested directors designated by a majority of
disinterested Directors, even though less than a quorum, or (iii)
if there are no such Disinterested directors, or if the
Disinterested directors so direct, by Independent Counsel in a
written determination to the board of directors, a copy of which
shall be delivered to the Covered Person seeking indemnification,
or (iv) by the vote of the holders of a majority of the
corporation’s capital stock outstanding at the time entitled
to vote thereon.
(b) Method of
Determination For Others. A determination (as provided for in this
Article or if required by applicable law in the specific case) with
respect to indemnification of any person other than a present
director or officer may be made by the board of directors in such
manner as it may determine appropriate.
(c) Initiating Request.
A person who seeks indemnification under this Article shall submit
a request for indemnification, including such documentation and
information as is reasonably available to such person and is
reasonably necessary to determine whether and to what extent such
person is entitled to indemnification.
(d) Effect of Other
Proceedings. The termination of any Proceeding or of any claim,
issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of guilty or of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Article)
of itself adversely affect the right of a Covered Person to
indemnification or create a presumption that a Covered Person did
not act in Good Faith.
Section 7.10 Action by the Corporation. Any
action, payment, advance determination (other than a determination
made pursuant to Section 7.9 above), authorization, requirement,
grant of indemnification or other action taken by the corporation
pursuant to this Article shall be effected exclusively through any
Disinterested person so authorized by the board of directors of the
corporation, including the president or any vice president of the
corporation.
Section 7.11 Non-Exclusivity. The rights to
indemnification and to receive advancement of Expenses as provided
by this Article shall not be deemed exclusive of any other rights
to which a person may at any time be entitled under applicable law,
the Certificate of Incorporation, these Bylaws, any agreement, a
vote of stockholders, a resolution of the board of directors, or
otherwise.
Section 7.12 Insurance. The corporation may
maintain, at its expense, an insurance policy or policies to
protect itself and any director, officer, employee or agent of the
corporation or another enterprise against liability arising out of
this Article or otherwise, whether or not the corporation would
have the power to indemnify any such person against such liability
under the Delaware General Corporation Law.
Section 7.13 No Duplicative Payment. The corporation
shall not be liable under this Article to Covered Person has
otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
Section 7.14 Expenses of Adjudication. In the event
that any Covered Person seeks a judicial adjudication, or an award
in arbitration, to enforce such Covered Person’s rights
under, or to recover damages for breach of, this Article, the
Covered Person shall be entitled to recover from the corporation,
and shall be indemnified by the corporation against, any and all
Expenses actually and reasonably incurred by such Covered Person in
seeking such adjudication or arbitration, but only if such Covered
Person prevails therein. If it shall be determined in such
adjudication or arbitration that the Covered Person is entitled to
receive part but not all of the indemnification of expenses sought,
the expenses incurred by such Covered Person in connection with
such adjudication or arbitration shall be appropriately
prorated.
Section 7.15 Severability. If any provision or
provisions of this Article shall be held to be invalid, illegal or
unenforceable for any reason whatsoever:
(a) the validity,
legality and enforceability of the remaining provisions of this
Article (including without limitation, each portion of any Section
of this Article containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired
thereby; and
(b) to the fullest
extent possible, the provisions of this Article (including, without
limitation, each portion of any Section of this Article containing
any such provision held to be invalid, illegal or unenforceable,
that is not itself held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable.
Section 7.16 No Retroactive Amendment. No amendment
or repeal of this Article or any provision hereof shall affect any
right of any person to be indemnified hereunder with respect to any
actions, omissions or state of facts existing prior to the date of
such amendment or repeal.
ARTICLE VIII
MISCELLANEOUS
PROVISIONS