AMENDED
AND RESTATED
BYLAWS
OF
ADAMIS
PHARMACEUTICALS CORPORATION
ARTICLE I
OFFICES
Section 1. Registered
Office. The registered office of the corporation
in the State of Delaware shall be in the City of Wilmington, County of New
Castle.
Section 2. Other
Offices. The corporation shall also have and
maintain an office or principal place of business at such place as may be fixed
by the Board of Directors, and may also have offices at such other places, both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
CORPORATE
SEAL
Section 3. Corporate
Seal. The Board of Directors may adopt a corporate
seal. The corporate seal shall consist of a die bearing the name of the
corporation and the inscription, "Corporate Seal-Delaware." Said seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE III
STOCKHOLDERS'
MEETINGS
Section 4. Place
Of Meetings. Meetings of the stockholders of the
corporation may be held at such place, either within or without the State of
Delaware, as may be determined from time to time by the Board of Directors. The
Board of Directors may, in its sole discretion, determine that the meeting shall
not be held at any place, but may instead be held solely by means of remote
communication as provided under the Delaware General Corporation Law (the "DGCL").
Section 5. Annual
Meetings.
(a) The
annual meeting of the stockholders of the corporation, for the purpose of
election of directors and for such other business as may lawfully come before
it, shall be held on such date and at such time as may be designated from time
to time by the Board of Directors. Nominations of persons for election to the
Board of Directors of the corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of stockholders:
(i) pursuant to the corporation's notice of meeting of stockholders;
(ii) by or at the direction of the Board of Directors; or (iii) by any
stockholder of the corporation who was a stockholder of record at the time of
giving the stockholder's notice provided for in the following paragraph, who is
entitled to vote at the meeting and who complied with the notice procedures set
forth in this Section 5.
(b) At an
annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. For nominations or other
business to be properly brought before an annual meeting by a stockholder
pursuant to clause (iii) of Section 5(a) of these Amended and Restated
Bylaws, (i) the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation, (ii) such other business must
be a proper matter for stockholder action under DGCL, (iii) if the
stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the corporation with a Solicitation Notice (as
defined in clause (iii) of the last sentence of this Section 5(b)),
such stockholder or beneficial owner must, in the case of a proposal, have
delivered a proxy statement and form of proxy to holders of at least the
percentage of the corporation's voting shares required under applicable law to
carry any such proposal, or, in the case of a nomination or nominations, have
delivered a proxy statement and form of proxy to holders of a percentage of the
corporation's voting shares reasonably believed by such stockholder or
beneficial owner to be sufficient to elect the nominee or nominees proposed to
be nominated by such stockholder, and must, in either case, have included in
such materials the Solicitation Notice, and (iv) if no Solicitation Notice
relating thereto has been timely provided pursuant to this section, the
stockholder or beneficial owner proposing such business or nomination must not
have solicited a number of proxies sufficient to have required the delivery of
such a Solicitation Notice under this Section 5. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the corporation not later than the close of business on the
90th
day nor earlier than the close of business on the 120th day
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is advanced more
than 30 days prior to or delayed by more than 30 days after the
anniversary of the preceding year's annual meeting, notice by the stockholder to
be timely must be so delivered not earlier than the close of business on the
120th day
prior to such annual meeting and not later than the close of business on the
later of the 90th day
prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such meeting is
first made. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth:
(A) as to each person whom the stockholder proposes to nominate for
election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "1934
Act") and Rule 14a-4(d) thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (C) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (X) the
name and address of such stockholder, as they appear on the corporation's books,
and of such beneficial owner, (Y) the class and number of shares of the
corporation which are owned beneficially and of record by such stockholder and
such beneficial owner, and (Z) whether either such stockholder or
beneficial owner intends to deliver a proxy statement and form of proxy to
holders of, in the case of the proposal, at least the percentage of the
corporation's voting shares required under applicable law to carry the proposal
or, in the case of a nomination or nominations, a sufficient number of holders
of the corporation's voting shares to elect such nominee or nominees (an
affirmative statement of such intent, a "Solicitation
Notice").
(c) Notwithstanding
anything in the third sentence of Section 5(b) of these Amended and
Restated Bylaws to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the corporation is increased and there is
no public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the corporation at least
100 days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 5 shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the 10th day
following the day on which such public announcement is first made by the
corporation.
(d) Only such
persons who are nominated in accordance with the procedures set forth in this
Section 5 shall be eligible to serve as directors and only such business
shall be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this
Section 5. Except as otherwise provided by law, the Chairman of the meeting
shall have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made, or proposed, as the case may
be, in accordance with the procedures set forth in these Amended and Restated
Bylaws and, if any proposed nomination or business is not in compliance with
these Amended and Restated Bylaws, to declare that such defective proposal or
nomination shall not be presented for stockholder action at the meeting and
shall be disregarded.
(e) Notwithstanding
the foregoing provisions of this Section 5, in order to include information
with respect to a stockholder proposal in the proxy statement and form of proxy
for a stockholders' meeting, a stockholder must also comply with all applicable
requirements of the 1934 Act and the rules and regulations thereunder with
respect to matters set forth in this Section 5. Nothing in these Amended
and Restated Bylaws shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the corporation's proxy statement pursuant to
Rule 14a-8 under the 1934 Act.
(f) For
purposes of this Section 5, "public announcement" shall mean disclosure in
a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the 1934 Act.
Section 6. Special
Meetings.
(a) Special
meetings of the stockholders of the corporation may be called, for any purpose
or purposes, by (i) the Chairman of the Board of Directors, (ii) the
President or Chief Executive Officer, (iii) the Board of Directors, or (iv)
the holders of shares representing at least 25% of all votes entitled to be cast
of any issue proposed to be considered at the meeting, and shall be held at such
place, on such date, and such time as the Board of Directors shall
fix.. At any time or times that the corporation is subject to
Section 2115(b) of the California General Corporation Law (“CGCL”),
stockholders holding five percent (5%) or more of the outstanding shares shall
have the right to call a special meeting of stockholders as set forth in
Section 18(b) herein.
(b) If a
special meeting is properly called by any person or persons other than the Board
of Directors, the request shall be in writing, specifying the general nature of
the business proposed to be transacted, and shall be delivered personally or
sent by certified or registered mail, return receipt requested, to the Chairman
of the Board of Directors, the Chief Executive Officer, or the Secretary of the
corporation. No business may be transacted at such special meeting otherwise
than specified in such notice. The Board of Directors shall determine the time
and place of such special meeting, which shall be held not less than 35 nor more
than 120 days after the date of the receipt of the request. Upon
determination of the time and place of the meeting, the officer receiving the
request shall cause notice to be given to the stockholders entitled to vote, in
accordance with the provisions of Section 7 of these Amended and Restated
Bylaws. Nothing contained in this paragraph (b) shall be construed as
limiting, fixing, or affecting the time when a meeting of stockholders called by
action of the Board of Directors may be held.
(c) Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
corporation's notice of meeting (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the corporation who is a
stockholder of record at the time of giving notice provided for in these Amended
and Restated Bylaws who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 6(c). In the
event the corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the corporation's notice of meeting, if the
stockholder's notice required by Section 5(b) of these Amended and Restated
Bylaws shall be delivered to the Secretary at the principal executive offices of
the corporation not earlier than the close of business on the 120th day
prior to such special meeting and not later than the close of business on the
later of the 90th day
prior to such meeting or the 10th day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a
stockholder's notice as described above.
(d) Notwithstanding
the foregoing provisions of this Section 6, a stockholder must also comply
with all applicable requirements of the 1934 Act and the rules and regulations
thereunder with respect to matters set forth in this Section 6. Nothing in
these Bylaws shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the corporation's proxy statement pursuant to
Rule 14a-8 under the 1934 Act.
Section 7. Notice
Of Meetings. Except as otherwise provided by law,
notice, given in writing or by electronic transmission, of each meeting of
stockholders shall be given not less than 10 nor more than 60 days before
the date of the meeting to each stockholder entitled to vote at such meeting,
such notice to specify the place, if any, date and hour, in the case of special
meetings, the purpose or purposes of the meeting, and the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at any such meeting. If mailed, notice is deemed
given when deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
corporation. If sent via electronic transmission, notice is deemed given as of
the sending time recorded at the time of transmission. Notice of the time,
place, if any, and purpose of any meeting of stockholders may be waived in
writing, signed by the person entitled to notice thereof, or by electronic
transmission by such person, either before or after such meeting, and will be
waived by any stockholder by his attendance thereat in person, by remote
communication, if applicable, or by proxy, except when the stockholder 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. Any stockholder so waiving notice of such meeting shall be bound by
the proceedings of any such meeting in all respects as if due notice thereof had
been given.
Section 8. Quorum. At
all meetings of stockholders, except where otherwise provided by statute or by
the Amended and Restated Certificate of Incorporation, or by these Amended and
Restated Bylaws, the presence, in person, by remote communication, if
applicable, or by proxy duly authorized, of the holders of a majority of the
outstanding shares of stock entitled to vote shall constitute a quorum for the
transaction of business. In the absence of a quorum, any meeting of stockholders
may be adjourned, from time to time, either by the chairman of the meeting or by
vote of the holders of a majority of the shares represented thereat, but no
other business shall be transacted at such meeting. The stockholders present at
a duly called or convened meeting, at which a quorum is present, may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Except as otherwise provided by law or
(if then-applicable to the corporation) by applicable stock exchange or Nasdaq
Stock Market rules, or by the Amended and Restated Certificate of Incorporation
or these Amended and Restated Bylaws, in all matters other than the election of
directors, the affirmative vote of a majority of shares present in person, by
remote communication, if applicable, or represented by proxy at the meeting and
entitled to vote generally on the subject matter shall be the act of the
stockholders. Except as otherwise provided by statute, the Amended and Restated
Certificate of Incorporation or these Amended and Restated Bylaws, directors
shall be elected by a plurality of the votes of the shares present in person, by
remote communication, if applicable, or represented by proxy duly authorized at
the meeting and entitled to vote on the election of directors. Where a separate
vote by a class or classes or series is required, except where otherwise
provided by the statute or by the Amended and Restated Certificate of
Incorporation or these Amended and Restated Bylaws, a majority of the
outstanding shares of such class or classes or series, present in person, by
remote communication, if applicable, or represented by proxy duly authorized,
shall constitute a quorum entitled to take action with respect to that vote on
that matter. Except where otherwise provided by statute or by the Amended and
Restated Certificate of Incorporation or these Amended and Restated Bylaws, the
affirmative vote of the majority (plurality, in the case of the election of
directors) of the outstanding shares of such class or classes or series present
in person, by remote communication, if applicable, or represented by proxy duly
authorized at the meeting shall be the act of such class or classes or
series.
Section 9. Adjournment
And Notice Of Adjourned Meetings. Any meeting of
stockholders, whether annual or special, may be adjourned from time to time
either by the chairman of the meeting or by the vote of a majority of the shares
present in person, by remote communication, if applicable, or represented by
proxy at the meeting. When a meeting is adjourned to another time or place, if
any, notice need not be given of the adjourned meeting if the time and place, if
any, thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting, the corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for more
than 30 days or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 10. Voting
Rights. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the stock
records of the corporation on the record date, as provided in Section 12 of
these Amended and Restated Bylaws, shall be entitled to vote at any meeting of
stockholders. Every person entitled to vote shall have the right to do so either
in person, by remote communication, if applicable, or by an agent or agents
authorized by a proxy granted in accordance with Delaware law. An agent so
appointed need not be a stockholder. No proxy shall be voted after three years
from its date of creation unless the proxy provides for a longer
period.
Section 11. Joint
Owners Of Stock. If shares or other securities
having voting power stand of record in the names of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, tenants
by the entirety, or otherwise, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary is given written
notice to the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided, their
acts with respect to voting shall have the following effect: (a) if only
one votes, his act binds all; (b) if more than one votes, and the vote is
not evenly split on a particular matter, the act of the majority so voting binds
all; (c) if more than one votes, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionally, or may apply to the Delaware Court of Chancery for relief as
provided in the DGCL, Section 217(b). If the instrument filed with the
Secretary shows that any such tenancy is held in unequal interests, a majority
or even-split for the purpose of subsection (c) shall be a majority or
even-split in interest.
Section 12. List
Of Stockholders. The Secretary shall prepare and
make, at least 10 days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at said meeting, arranged in
alphabetical order, 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,
(a) 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 (b) during ordinary business hours, at the principal place
of business of the corporation. In the event that the corporation determines to
make the list available on an electronic network, the corporation may take
reasonable steps to ensure that such information is available only to
stockholders of the corporation. The list shall be open to examination of any
stockholder during the time of the meeting as provided by law.
Section 13. Action
Without Meeting. No action shall be taken by the
stockholders except at an annual or special meeting of stockholders called in
accordance with these Amended and Restated Bylaws, and no action shall be taken
by the stockholders by written consent or by electronic
transmission.
Section 14. Organization.
(a) At every
meeting of stockholders, the Chairman of the Board of Directors, or, if a
Chairman has not been appointed or is absent, the President, or, if the
President is absent, a chairman of the meeting chosen by a majority in interest
of the stockholders entitled to vote, present in person or by proxy duly
authorized, shall act as chairman. The Secretary, or, in his absence, an
Assistant Secretary directed to do so by the President, shall act as secretary
of the meeting.
(b) The Board
of Directors of the corporation shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it shall deem
necessary, appropriate or convenient. Subject to such rules and regulations of
the Board of Directors, if any, 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 necessary, appropriate or
convenient for the proper conduct of the meeting, including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of record of the
corporation and their duly authorized and constituted proxies and such other
persons as the chairman shall permit, restrictions on entry to the meeting after
the time fixed for the commencement thereof, limitations on the time allotted to
questions or comments by participants and regulation of the opening and closing
of the polls for balloting on matters which are to be voted on by ballot. 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.
Unless and to the extent determined by the Board of Directors or the chairman of
the meeting, meetings of stockholders shall not be required to be held in
accordance with rules of parliamentary procedure.
ARTICLE IV
DIRECTORS
Section 15. Number
And Term Of Office. The authorized number of
directors of the corporation shall be fixed by the Board of Directors from time
to time. Directors need not be stockholders unless so required by the Amended
and Restated Certificate of Incorporation. If for any reason, the directors
shall not have been elected at an annual meeting, they may be elected as soon
thereafter as convenient.
Section 16. Powers. The
powers of the corporation shall be exercised, its business conducted and its
property controlled by the Board of Directors, except as may be otherwise
provided by statute or by the Amended and Restated Certificate of
Incorporation.
Section 17. Term
of Directors.
(a) Subject
to the rights of the holders of any series of Preferred Stock to elect
additional directors under specified circumstances, the directors shall be
elected at each annual meeting of stockholders for a term of one
year. Notwithstanding the foregoing provisions of this section, each
director shall serve until his successor is duly elected and qualified or until
his earlier death, resignation or removal. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
(b) No
stockholder entitled to vote at an election for directors may cumulate votes to
which such stockholder is entitled, unless, at the time of such election, the
corporation is subject to Section 2115(b) of the CGCL. During such time or
times that the corporation is subject to Section 2115(b) of the CGCL, every
stockholder entitled to vote at an election for directors may cumulate such
stockholder’s votes and give one candidate a number of votes equal to the number
of directors to be elected multiplied by the number of votes to which such
stockholder’s shares are otherwise entitled, or distribute the stockholder’s
votes on the same principle among as many candidates as such stockholder thinks
fit. No stockholder, however, shall be entitled to so cumulate such
stockholder’s votes unless (i) the names of such candidate or candidates have
been placed in nomination prior to the voting and (ii) the stockholder has given
notice at the meeting, prior to the voting, of such stockholder’s intention to
cumulate such stockholder’s votes. If any stockholder has given proper notice to
cumulate votes, all stockholders may cumulate their votes for any candidates who
have been properly placed in nomination. Under cumulative voting, the candidates
receiving the highest number of votes, up to the number of directors to be
elected, are elected.
Section 18. Vacancies.
(a) Unless
otherwise provided in the Certificate of Incorporation, and subject to the
rights of the holders of any series of Preferred Stock, any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal
or other causes and any newly created directorships resulting from any increase
in the number of directors shall, unless the Board of Directors determines by
resolution that any such vacancies or newly created directorships shall be
filled by stockholders, be filled only by the affirmative vote of a majority of
the directors then in office, even though less than a quorum of the Board of
Directors, or by a sole remaining director, provided, however, that
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 shall, unless the Board of Directors determines by resolution
that any such vacancies or newly created directorships shall be filled by
stockholders, 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. Any director elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the director for which the
vacancy was created or occurred and until such director’s successor shall have
been elected and qualified. A vacancy in the Board of Directors shall be deemed
to exist under this Bylaw in the case of the death, removal or resignation of
any director.
(b) At
any time or times that the corporation is subject to Section 2115(b) of the
CGCL, if, after the filling of any vacancy, the directors then in office who
have been elected by stockholders shall constitute less than a majority of the
directors then in office, then
(1) any
holder or holders of an aggregate of five percent (5%) or more of the total
number of shares at the time outstanding having the right to vote for those
directors may call a special meeting of stockholders; or
(2) the
Superior Court of the proper county shall, upon application of such stockholder
or stockholders, summarily order a special meeting of the stockholders, to be
held to elect the entire board, all in accordance with Section 305(c) of
the CGCL, the term of office of any director shall terminate upon that election
of a successor. (CGCL §305(c).
Section 19. Resignation. Any
director may resign at any time by delivering his or her notice in writing or by
electronic transmission to the Secretary, such resignation to specify whether it
will be effective at a particular time, upon receipt by the Secretary or at the
pleasure of the Board of Directors. If no such specification is made, it shall
be deemed effective at the pleasure of the Board of Directors. When one or more
directors shall resign from the Board of Directors, 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 for the unexpired portion of the term
of the director whose place shall be vacated and until his successor shall have
been duly elected and qualified.
Section 20. Removal.
(a) Subject to any
limitations imposed by applicable law, the Board of Directors or any director
may be removed from office at any time (i) with cause by the affirmative vote of
the holders of a majority of the voting power of all then-outstanding shares of
capital stock of the corporation entitled to vote generally at an election of
directors or (ii) without cause by the affirmative vote of the holders of a
majority of the
voting power of all then-outstanding shares of capital stock of the corporation,
entitled to vote generally at an election of directors.
Section 21. Meetings.
(a) Regular
Meetings. Unless otherwise restricted by the
Amended and Restated Certificate of Incorporation, regular meetings of the Board
of Directors may be held at any time or date and at any place within or without
the State of Delaware which has been designated by the Board of Directors and
publicized among all directors, either orally or in writing, by telephone,
including a voice-messaging system or other system designed to record and
communicate messages, facsimile, telegraph or telex, or by electronic mail or
other electronic means. No further notice shall be required for regular meetings
of the Board of Directors.
(b) Special
Meetings. Unless otherwise restricted by the
Amended and Restated Certificate of Incorporation, special meetings of the Board
of Directors may be held at any time and place within or without the State of
Delaware whenever called by the Chairman of the Board, the Chief Executive
Officer or a majority of the directors then in office.
(c) Meetings
by Electronic Communications Equipment. Any member
of the Board of Directors, or of any committee thereof, may participate in a
meeting by means of conference telephone or other communications equipment by
means of which all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in person at
such meeting.
(d) Notice of
Special Meetings. Notice of the time and place of
all special meetings of the Board of Directors shall be orally or in writing, by
telephone, including a voice messaging system or other system or technology
designed to record and communicate messages, facsimile, telegraph or telex, or
by electronic mail or other electronic means, during normal business hours, at
least 24 hours before the date and time of the meeting. If notice is sent
by U.S. mail, it shall be sent by first class mail, charges prepaid, at least
three days before the date of the meeting. Notice of any meeting may be waived
in writing, or by electronic transmission, at any time before or after the
meeting and will be waived by any director by attendance thereat, except when
the director attends the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened.
(e) Waiver of
Notice. The transaction of all business at any
meeting of the Board of Directors, or any committee thereof, however called or
noticed, or wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice, if a quorum be present and if, either before
or after the meeting, each of the directors not present who did not receive
notice shall sign a written waiver of notice or shall waive notice by electronic
transmission. All such waivers shall be filed with the corporate records or made
a part of the minutes of the meeting.
Section 22. Quorum
And Voting.
(a) Unless
the Amended and Restated Certificate of Incorporation requires a greater number,
and except with respect to questions related to indemnification arising under
Section 43 for which a quorum shall be one-third of the exact number of
directors fixed from time to time, a quorum of the Board of Directors shall
consist of a majority of the exact number of directors fixed from time to time
by the Board of Directors in accordance with the Amended and Restated
Certificate of Incorporation; provided, however, at any
meeting whether a quorum be present or otherwise, a majority of the directors
present may adjourn from time to time until the time fixed for the next regular
meeting of the Board of Directors, without notice other than by announcement at
the meeting.
(b) At each
meeting of the Board of Directors at which a quorum is present, all questions
and business shall be determined by the affirmative vote of a majority of the
directors present, unless a different vote be required by law, the Amended and
Restated Certificate of Incorporation or these Amended and Restated
Bylaws.
Section 23. Action
Without Meeting. Unless otherwise restricted by
the Amended and Restated Certificate of Incorporation or these Amended and
Restated Bylaws, any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken without a
meeting, if all members of the Board of Directors or committee, as the case may
be, consent thereto in writing or by electronic transmission, and such writing
or writings or transmission or transmissions are filed with the minutes of
proceedings of the Board of Directors or committee. Such filing shall be in
paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
Section 24. Fees
And Compensation. Directors shall be entitled to
such compensation for their services as may be approved by the Board of
Directors, including, if so approved, by resolution of the Board of Directors, a
fixed sum and expenses of attendance, if any, for attendance at each regular or
special meeting of the Board of Directors and at any meeting of a committee of
the Board of Directors. Nothing herein contained shall be construed to preclude
any director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise and receiving compensation therefor.
Section 25. Committees.
(a) Executive
Committee. The Board of Directors may appoint an
Executive Committee to consist of one or more members of the Board of Directors.
The Executive Committee, to the extent permitted by law and provided in the
resolution of the Board of Directors shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
DGCL to be submitted to stockholders for approval, or (ii) adopting,
amending or repealing any bylaw of the corporation.
(b) Other
Committees. The Board of Directors may, from time
to time, appoint such other committees as may be permitted by law. Such other
committees appointed by the Board of Directors shall consist of one or more
members of the Board of Directors and shall have such powers and perform such
duties as may be prescribed by the resolution or resolutions creating such
committees, but in no event shall any such committee have the powers denied to
the Executive Committee in these Amended and Restated Bylaws.
(c) Term. The
Board of Directors, subject to any requirements of any outstanding series of
Preferred Stock and the provisions of subsections (a) or (b) of this
Section 25, may at any time increase or decrease the number of members of a
committee or terminate the existence of a committee. The membership of a
committee member shall terminate on the date of his death or voluntary
resignation from the committee or from the Board of Directors. The Board of
Directors may at any time for any reason remove any individual committee member
and the Board of Directors may fill any committee vacancy created by death,
resignation, removal or increase in the number of members of the committee. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee, and, in addition, in the absence or disqualification of any
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
(d) Meetings. Unless
the Board of Directors shall otherwise provide, regular meetings of the
Executive Committee or any other committee appointed pursuant to this
Section 25 shall be held at such times and places as are determined by the
Board of Directors, or by any such committee, and when notice thereof has been
given to each member of such committee, no further notice of such regular
meetings need be given thereafter. Special meetings of any such committee may be
held at any place which has been determined from time to time by such committee,
and may be called by any director who is a member of such committee, upon notice
to the members of such committee of the time and place of such special meeting
given in the manner provided for the giving of notice to members of the Board of
Directors of the time and place of special meetings of the Board of Directors.
Notice of any special meeting of any committee may be waived in writing at any
time before or after the meeting and will be waived by any director by
attendance thereat, except when the director attends such special 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. Unless otherwise provided by the Board of Directors in the resolutions
authorizing the creation of the committee, a majority of the authorized number
of members of any such committee shall constitute a quorum for the transaction
of business, and the act of a majority of those present at any meeting at which
a quorum is present shall be the act of such committee.
Section 26. Organization. At
every meeting of the directors, the Chairman of the Board of Directors, or, if a
Chairman has not been appointed or is absent, the Chief Executive Officer (if a
director), or if the Chief Executive Officer is absent, the President (if a
director), or, in the absence of any such person, a chairman of the meeting
chosen by a majority of the directors present, shall preside over the meeting.
The Secretary, or in his absence, any Assistant Secretary directed to do so by
the Chairman, shall act as secretary of the meeting.
ARTICLE V
OFFICERS
Section 27. Officers
Designated. The officers of the corporation shall
include, if and when designated by the Board of Directors, the Chairman of the
Board of Directors, the Chief Executive Officer, the President, one or more Vice
Presidents, the Secretary, the Chief Financial Officer and the Treasurer. The
Board of Directors may also appoint one or more Assistant Secretaries, Assistant
Treasurers and such other officers and agents with such powers and duties as it
shall deem necessary. The Board of Directors may assign such additional titles
to one or more of the officers as it shall deem appropriate. Any one person may
hold any number of offices of the corporation at any one time unless
specifically prohibited therefrom by law. The salaries and other compensation of
the officers of the corporation shall be fixed by or in the manner designated by
the Board of Directors.
Section 28. Tenure
And Duties Of Officers.
(a) General. All
officers shall hold office at the pleasure of the Board of Directors and until
their successors shall have been duly elected and qualified, unless sooner
removed. Any officer elected or appointed by the Board of Directors may be
removed at any time by the Board of Directors. If the office of any officer
becomes vacant for any reason, the vacancy may be filled by the Board of
Directors.
(b) Duties of
Chairman of the Board of Directors. The Chairman
of the Board of Directors, when present, shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of Directors
shall perform other duties commonly incident to the office and shall also
perform such other duties and have such other powers, as the Board of Directors
shall designate from time to time. If there is no President or Chief Executive
Officer, unless otherwise determined by the Board of Directors, then the
Chairman of the Board of Directors shall also serve as the President of the
corporation and shall have the powers and duties prescribed in
paragraph (c) of this Section 28.
(c) Duties of
Chief Executive Officer. The Chief Executive
Officer shall preside at all meetings of the stockholders and at all meetings of
the Board of Directors, unless the Chairman of the Board of Directors has been
appointed and is present. Unless some other officer has been elected Chief
Executive Officer of the corporation, the President shall be the chief executive
officer of the corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction and control of the business and
officers of the corporation. To the extent that a Chief Executive Officer has
been appointed, all references in these Bylaws to the President shall be deemed
references to the Chief Executive Officer. The Chief Executive Officer shall
perform other duties commonly incident to the office and shall also perform such
other duties and have such other powers, as the Board of Directors shall
designate from time to time.
(d) Duties of
President. The President shall preside at all
meetings of the stockholders and at all meetings of the Board of Directors,
unless the Chairman of the Board of Directors or the Chief Executive Officer has
been appointed and is present. Unless another officer has been appointed Chief
Executive Officer of the corporation, the President shall be the chief executive
officer of the corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction and control of the business and
officers of the corporation. The President shall perform other duties commonly
incident to the office and shall also perform such other duties and have such
other powers, as the Board of Directors shall designate from time to
time.
(e) Duties of
Vice Presidents. The Vice Presidents may assume
and perform the duties of the President in the absence or disability of the
President or whenever the office of President is vacant. The Vice Presidents
shall perform other duties commonly incident to their office and shall also
perform such other duties and have such other powers as the Board of Directors
or the Chief Executive Officer shall designate from time to time.
(f) Duties of
Secretary. The Secretary shall attend all meetings
of the stockholders and of the Board of Directors and shall record all acts and
proceedings thereof in the minute book of the corporation. The Secretary shall
give notice in conformity with these Amended and Restated Bylaws of all meetings
of the stockholders and of all meetings of the Board of Directors and any
committee thereof requiring notice. The Secretary shall perform all other duties
provided for in these Amended and Restated Bylaws and other duties commonly
incident to the office and shall also perform such other duties and have such
other powers, as the Board of Directors shall designate from time to time. The
President may direct any Assistant Secretary to assume and perform the duties of
the Secretary in the absence or disability of the Secretary, and each Assistant
Secretary shall perform other duties commonly incident to the office and shall
also perform such other duties and have such other powers as the Board of
Directors or the President shall designate from time to time.
(g) Duties of
Chief Financial Officer. The Chief Financial
Officer shall keep or cause to be kept the books of account of the corporation
in a thorough and proper manner and shall render statements of the financial
affairs of the corporation in such form and as often as required by the Board of
Directors or the President. The Chief Financial Officer, subject to the order of
the Board of Directors, shall have the custody of all funds and securities of
the corporation. The Chief Financial Officer shall perform other duties commonly
incident to the office and shall also perform such other duties and have such
other powers as the Board of Directors or the President shall designate from
time to time. The President may direct the Treasurer or any Assistant Treasurer,
or the Controller or any Assistant Controller to assume and perform the duties
of the Chief Financial Officer in the absence or disability of the Chief
Financial Officer, and each Treasurer and Assistant Treasurer and each
Controller and Assistant Controller shall perform other duties commonly incident
to the office and shall also perform such other duties and have such other
powers as the Board of Directors or the President shall designate from time to
time.
Section 29. Delegation
Of Authority. The Board of Directors may from time
to time delegate the powers or duties of any officer to any other officer or
agent, notwithstanding any provision hereof.
Section 30. Resignations. Any
officer may resign at any time by giving notice in writing or by electronic
transmission to the Board of Directors or to the President or to the Secretary.
Any such resignation shall be effective when received by the person or persons
to whom such notice is given, unless a later time is specified therein, in which
event the resignation shall become effective at such later time. Unless
otherwise specified in such notice, the acceptance of any such resignation shall
not be necessary to make it effective. Any resignation shall be without
prejudice to the rights, if any, of the corporation under any contract with the
resigning officer.
Section 31. Removal. Any
officer may be removed from office at any time, either with or without cause, by
the affirmative vote of a majority of the directors in office at the time, or by
the unanimous written consent of the directors in office at the time, or by any
committee or by the Chief Executive Officer or by other superior officers upon
whom such power of removal may have been conferred by the Board of
Directors.
ARTICLE
VI
EXECUTION
OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE
CORPORATION
Section 32. Execution
Of Corporate Instruments. The Board of Directors
may, in its discretion, determine the method and designate the signatory officer
or officers, or other person or persons, to execute on behalf of the corporation
any corporate instrument or document, or to sign on behalf of the corporation
the corporate name without limitation, or to enter into contracts on behalf of
the corporation, except where otherwise provided by law or these Amended and
Restated Bylaws, and such execution or signature shall be binding upon the
corporation.
All
checks and drafts drawn on banks or other depositaries on funds to the credit of
the corporation or in special accounts of the corporation shall be signed by
such person or persons as the Board of Directors shall authorize so to
do.
Unless
authorized or ratified by the Board of Directors or within the agency power of
an officer, no officer, agent or employee shall have any power or authority to
bind the corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or for any amount.
Section 33. Voting
Of Securities Owned By The Corporation. All stock
and other securities of other corporations owned or held by the corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors, or, in the absence of such authorization,
by the Chairman of the Board of Directors, the Chief Executive Officer, the
President, or any Vice President.
ARTICLE
VII
SHARES
OF STOCK
Section 34. Form
And Execution Of Certificates. The shares of the
corporation shall be represented by certificates, or shall be uncertificated.
Certificates for the shares of stock of the corporation, if any, shall be in
such form as is consistent with the Amended and Restated Certificate of
Incorporation and applicable law. Every holder of stock represented by
certificate in the corporation shall be entitled to have a certificate signed by
or in the name of the corporation by the Chairman of the Board of Directors, the
Chief Executive Officer, the President or any Vice President and by the Chief
Financial Officer, Treasurer or Assistant Treasurer or the Secretary or
Assistant Secretary, certifying the number of shares owned by him in the
corporation. Any or all of the signatures on the certificate may be facsimiles.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may be issued with the same effect as if he were such officer, transfer agent,
or registrar at the date of issue. Each certificate, if any, shall state upon
the face or back thereof, in full or in summary, all of the powers,
designations, preferences, and rights, and the limitations or restrictions of
the shares authorized to be issued or shall, except as otherwise required by
law, set forth on the face or back a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, designations,
preferences and relative, participating, optional, or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Within a reasonable time after
the issuance or transfer of uncertificated stock, the corporation shall send to
the registered owner thereof a written notice containing the information
required to be set forth or stated on certificates pursuant to this section or
otherwise required by law or with respect to this section a statement that
the corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or
rights.
Section 35. Lost
Certificates. A new certificate or certificates
shall be issued in place of any certificate or certificates theretofore issued
by the corporation alleged to have been lost, stolen, or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen, or destroyed. The corporation may require, as a
condition precedent to the issuance of a new certificate or certificates, the
owner of such lost, stolen, or destroyed certificate or certificates, or the
owner's legal representative, to agree to indemnify the corporation in such
manner as it shall require or to give the corporation a surety bond in such form
and amount as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have been
lost, stolen, or destroyed.
Section 36. Transfers.
(a) Transfers
of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, and, in
the case of stock represented by certificate, upon the surrender of a properly
endorsed certificate or certificates for a like number of shares.
(b) The
corporation shall have power to enter into and perform any agreement with any
number of stockholders of any one or more classes of stock of the corporation to
restrict the transfer of shares of stock of the corporation of any one or more
classes owned by such stockholders in any manner not prohibited by the
DGCL.
Section 37. Fixing
Record Dates.
(a) In
order that the corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, the Board
of Directors may fix, in advance, a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date shall, subject to applicable law,
not be more than 60 nor less than 10 days before the date of such meeting.
If no record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for the adjourned
meeting.
(b) In
order that the corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders 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 record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 38. Registered
Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE
VIII
OTHER
SECURITIES OF THE CORPORATION
Section 39. Execution
Of Other Securities. All bonds, debentures and
other corporate securities of the corporation, other than stock certificates
(covered in Section 34), may be signed by the Chairman of the Board of
Directors, the Chief Executive Officer, the President or any Vice President, or
such other person as may be authorized by the Board of Directors, and the
corporate seal impressed thereon or a facsimile of such seal imprinted thereon
and attested by the signature of the Secretary or an Assistant Secretary, or the
Chief Financial Officer or Treasurer or an Assistant Treasurer; provided, however, that where
any such bond, debenture or other corporate security shall be authenticated by
the manual signature, or where permissible facsimile signature, of a trustee
under an indenture pursuant to which such bond, debenture or other corporate
security shall be issued, the signatures of the persons signing and attesting
the corporate seal on such bond, debenture or other corporate security may be
the imprinted facsimile of the signatures of such persons. Interest coupons
appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an
Assistant Treasurer of the corporation or such other person as may be authorized
by the Board of Directors, or bear imprinted thereon the facsimile signature of
such person. In case any officer who shall have signed or attested any bond,
debenture or other corporate security, or whose facsimile signature shall appear
thereon or on any such interest coupon, shall have ceased to be such officer
before the bond, debenture or other corporate security so signed or attested
shall have been delivered, such bond, debenture or other corporate security
nevertheless may be adopted by the corporation and issued and delivered as
though the person who signed the same or whose facsimile signature shall have
been used thereon had not ceased to be such officer of the
corporation.
ARTICLE
IX
DIVIDENDS
Section 40. Declaration
Of Dividends. Dividends upon the capital stock of
the corporation, subject to the provisions of the Amended and Restated
Certificate of Incorporation and applicable law, if any, may be declared by the
Board of Directors pursuant to law at any regular or special meeting. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the Amended and Restated Certificate of Incorporation and
applicable law.
Section 41. Dividend
Reserve. Before payment of any dividend, there may
be set aside out of any funds of the corporation available for dividends such
sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of Directors shall think
conducive to the interests of the corporation, and the Board of Directors may
modify or abolish any such reserve in the manner in which it was
created.
ARTICLE
X
FISCAL
YEAR
Section 42. Fiscal
Year. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
ARTICLE
XI
INDEMNIFICATION
Section 43. Indemnification
Of Directors, Officers, Employees And Other Agents.
(a) Directors
and Officers. The corporation shall indemnify its
directors and officers to the fullest extent not prohibited by the DGCL or any
other applicable law; provided, however, that the
corporation may modify the extent of such indemnification by individual
contracts with its directors and officers; and, provided, further, that the
corporation shall not be required to indemnify any director or officer in
connection with any proceeding (or part thereof) initiated by such person unless
(i) such indemnification is expressly required to be made by law,
(ii) the proceeding was authorized by the Board of Directors of the
corporation, (iii) such indemnification is provided by the corporation, in
its sole discretion, pursuant to the powers vested in the corporation under the
DGCL or any other applicable law or (iv) such indemnification is required
to be made under subsection (d).
(b) Employees
and Other Agents. The corporation shall have power
to indemnify its employees and other agents as set forth in the DGCL or any
other applicable law. The Board of Directors shall have the power to delegate
the determination of whether indemnification shall be given to any such employee
or other persons as the Board of Directors shall determine.
(c) Expenses. The
corporation shall advance to any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
prior to the final disposition of the proceeding, promptly following request
therefor, all expenses incurred by any director or officer in connection with
such proceeding provided, however, that if the DGCL requires, an advancement of
expenses incurred by a director or officer in his or her capacity as a director
or officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section or otherwise.
Notwithstanding
the foregoing, unless otherwise determined pursuant to paragraph (e) of
this Section, no advance shall be made by the corporation to an officer of the
corporation (except by reason of the fact that such officer is or was a director
of the corporation, in which event this paragraph shall not apply) in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, if a determination is reasonably and promptly made (i) by
the Board of Directors by a majority vote of directors who were not parties to
the proceeding, even if not a quorum, or (ii) by a committee of such
directors designated by a majority vote of such directors, even though less than
a quorum, or (iii) if there are no such directors, or such directors so
direct, by independent legal counsel in a written opinion, that the facts known
to the decision-making party at the time such determination is made demonstrate
clearly and convincingly that such person acted in bad faith or in a manner that
such person did not believe to be in or not opposed to the best interests of the
corporation.
(d) Enforcement. Without
the necessity of entering into an express contract, all rights to
indemnification and advances to directors and officers under this
Section shall be deemed to be contractual rights and be effective to the
same extent and as if provided for in a contract between the corporation and the
director or officer. Any right to indemnification or advances granted by this
Section to a director or officer shall be enforceable by or on behalf of
the person holding such right in any court of competent jurisdiction if
(i) the claim for indemnification or advances is denied, in whole or in
part, or (ii) no disposition of such claim is made within 90 days of
request therefor. The claimant in such enforcement action, if successful in
whole or in part, shall be entitled to be paid also the expense of prosecuting
the claim. In connection with any claim for indemnification, the corporation
shall be entitled to raise as a defense to any such action that the claimant has
not met the standards of conduct that make it permissible under the DGCL or any
other applicable law for the corporation to indemnify the claimant for the
amount claimed. In connection with any claim by an officer of the corporation
(except in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such officer is or
was a director of the corporation) for advances, the corporation shall be
entitled to raise a defense as to any such action clear and convincing evidence
that such person acted in bad faith or in a manner that such person did not
believe to be in or not opposed to the best interests of the corporation, or
with respect to any criminal action or proceeding that such person acted without
reasonable cause to believe that his conduct was lawful. Neither the failure of
the corporation (including its Board of Directors, independent legal counsel or
its stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the officer or director has met the applicable standard of conduct set
forth in the DGCL or any other applicable law, nor an actual determination by
the corporation (including its Board of Directors, independent legal counsel or
its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that claimant
has not met the applicable standard of conduct. In any suit brought by a
director or officer to enforce a right to indemnification or to an advancement
of expenses hereunder, the burden of proving that the director or officer is not
entitled to be indemnified, or to such advancement of expenses, under this
Section or otherwise shall be on the corporation.
(e) Non-Exclusivity
of Rights. The rights conferred on any person by
this Bylaw shall not be exclusive of any other right which such person may have
or hereafter acquire under any applicable statute, provision of the Amended and
Restated Certificate of Incorporation, Amended and Restated Bylaws, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding office. The corporation is specifically authorized to enter into
individual contracts with any or all of its directors, officers, employees or
agents respecting indemnification and advances, to the fullest extent not
prohibited by the DGCL, or by any other applicable law.
(f) Survival
of Rights. The rights conferred on any person by
this Bylaw shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) Insurance. To
the fullest extent permitted by the DGCL or any other applicable law, the
corporation, upon approval by the Board of Directors, may purchase insurance on
behalf of any person required or permitted to be indemnified pursuant to this
Section.
(h) Amendments. Any
repeal or modification of this Section shall only be prospective and shall
not affect the rights under this Bylaw in effect at the time of the alleged
occurrence of any action or omission to act that is the cause of any proceeding
against any agent of the corporation.
(i) Saving
Clause. If this Bylaw or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and officer to the full
extent not prohibited by any applicable portion of this Section that shall
not have been invalidated, or by any other applicable law. If this
Section shall be invalid due to the application of the indemnification
provisions of another jurisdiction, then the corporation shall indemnify each
director and officer to the full extent under any other applicable
law.
(j) Certain
Definitions. For the purposes of this Bylaw, the
following definitions shall apply:
(1) The term
"proceeding" shall be broadly construed and shall include, without limitation,
the investigation, preparation, prosecution, defense, settlement, arbitration
and appeal of, and the giving of testimony in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative.
(2) The term
"expenses" shall be broadly construed and shall include, without limitation,
court costs, attorneys' fees, witness fees, fines, amounts paid in settlement or
judgment and any other costs and expenses of any nature or kind incurred in
connection with any proceeding.
(3) The term
the "corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Section 43
with respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
(4) References
to a "director," "officer," "employee," or "agent" of the corporation shall
include, without limitation, situations where such person is serving at the
request of the corporation as, respectively, a director, officer, employee,
trustee or agent of another corporation, partnership, joint venture, trust or
other enterprise.
(5) References
to "other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer, employee or agent
of the corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the corporation" as
referred to in this Section.
ARTICLE
XII
NOTICES
Section 44. Notices.
(a) Notice To
Stockholders. Written notice to stockholders of
stockholder meetings shall be given as provided in Section 7 herein.
Without limiting the manner by which notice may otherwise be given effectively
to stockholders under any agreement or contract with such stockholder, and
except as otherwise required by law, written notice to stockholders for purposes
other than stockholder meetings may be sent by U.S. mail or nationally
recognized overnight courier, or by facsimile, telegraph or telex or by
electronic mail or other electronic means.
(b) Notice To
Directors. Any notice required to be given to any
director may be given by the method stated in subsection (a), as otherwise
provided in these Amended and Restated Bylaws, or by overnight delivery service,
facsimile, telex or telegram, except that such notice other than one which is
delivered personally shall be sent to such address as such director shall have
filed in writing with the Secretary, or, in the absence of such filing, to the
last known post office address of such director.
(c) Affidavit
Of Mailing. An affidavit of mailing, executed by a
duly authorized and competent employee of the corporation or its transfer agent
appointed with respect to the class of stock affected, or other agent,
specifying the name and address or the names and addresses of the stockholder or
stockholders, or director or directors, to whom any such notice or notices was
or were given, and the time and method of giving the same, shall in the absence
of fraud, be prima facie evidence of the facts therein contained.
(d) Methods of
Notice. It shall not be necessary that the same
method of giving notice be employed in respect of all recipients of notice, but
one permissible method may be employed in respect of any one or more, and any
other permissible method or methods may be employed in respect of any other or
others.
(e) Notice To
Person With Whom Communication Is
Unlawful. Whenever notice is required to be given,
under any provision of law or of the Amended and Restated Certificate of
Incorporation or Amended and Restated Bylaws of the corporation, to any person
with whom communication is unlawful, the giving of such notice to such person
shall not be required and there shall be no duty to apply to any governmental
authority or agency for a license or permit to give such notice to such person.
Any action or meeting which shall be taken or held without notice to any such
person with whom communication is unlawful shall have the same force and effect
as if such notice had been duly given. In the event that the action taken by the
corporation is such as to require the filing of a certificate under any
provision of the DGCL, the certificate shall state, if such is the fact and if
notice is required, that notice was given to all persons entitled to receive
notice except such persons with whom communication is unlawful.
(f) Notice to
Stockholders Sharing an Address. Except as
otherwise prohibited under the DGCL, any notice given under the provisions of
the DGCL, the Amended and Restated Certificate of Incorporation or the Amended
and Restated Bylaws shall be effective if given by a single written notice to
stockholders who share an address if consented to by the stockholders at that
address to whom such notice is given. Such consent shall have been deemed to
have been given if such stockholder fails to object in writing to the
corporation within 60 days of having been given notice by the corporation
of its intention to send the single notice. Any consent shall be revocable by
the stockholder by written notice to the corporation.
ARTICLE
XIII
AMENDMENTS
Section 45. Bylaw
Amendments. Subject to these Bylaws or the
provisions of the Amended and Restated Certificate of Incorporation, the Board
of Directors is expressly empowered to adopt, amend or repeal the Bylaws of the
corporation. Any adoption, amendment or repeal of the Bylaws of the corporation
by the Board of Directors shall require the approval of a majority of the
authorized number of Directors. The stockholders shall also have power to adopt,
amend or repeal the Bylaws of the corporation; provided, however, that, in
addition to any vote of the holders of any class or series of stock of the
corporation required by law or by the Amended and Restated Certificate of
Incorporation, the affirmative vote of the holders of at least a majority of the
voting power of all of the then-outstanding shares of the capital stock of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provision of the Bylaws of the corporation.
ARTICLE
XIV
LOANS
TO OFFICERS OR EMPLOYEES
Section 46. Loans
To Officers Or Employees. Except as otherwise
prohibited by applicable law, the corporation may lend money to, or guarantee
any obligation of, or otherwise assist any officer or other employee of the
corporation or of its subsidiaries, including any officer or employee who is a
director of the corporation or its subsidiaries, whenever, in the judgment of
the Board of Directors, such loan, guarantee or assistance may reasonably be
expected to benefit the corporation. The loan, guarantee or other assistance may
be with or without interest and may be unsecured, or secured in such manner as
the Board of Directors shall approve, including, without limitation, a pledge of
shares of stock of the corporation. Nothing in these Amended and Restated Bylaws
shall be deemed to deny, limit or restrict the powers of guaranty or warranty of
the corporation at common law or under any statute.
ARTICLE
XII
NOTICES
Section 47. Section
2115. At any time or times that the corporation is
subject to Section 2115(b) of the CGCL, then these Amended and Restated Bylaws
shall be interpreted so as to be consistent with, and shall be deemed to
include, those provisions of the CGCL that are required by applicable law to
apply to the corporation.