ex3-1
Exhibit 3.1
AMENDED AND RESTATED BYLAWS
OF
AZURRX BIOPHARMA, INC.
(as
amended through August 5, 2020)
ARTICLE I
STOCKHOLDERS
1.1 Place of Meetings. All meetings
of stockholders shall be held at such place, if any, as may be
designated from time to time by the Board of Directors (the
“Board”) of AzurRx
BioPharma, Inc. (the “Corporation”), the
Chairman of the Board or the Chief Executive Officer or, if not so
designated, at the principal office of the Corporation. The Board
may, in its sole discretion, determine that a meeting shall not be
held at any place, but may instead be held solely by means of
remote communication in accordance with Section 211(a)(2) of the
General Corporation Law of the State of Delaware (the
“DGCL”).
1.2 Annual Meeting. The annual
meeting of stockholders for the election of directors to succeed
those whose terms expire and for the transaction of such other
business as may properly be brought before the meeting shall be
held on a date and at a time designated by the Board, the Chairman
of the Board or the Chief Executive Officer. The Board may
postpone, recess, reschedule or cancel any previously scheduled
annual meeting of stockholders.
1.3 Special Meetings. Special
meetings of stockholders for any purpose or purposes may be called
at any time by the Board, the Chairman of the Board or the Chief
Executive Officer of the Corporation, and may not be called by any
other person or persons. Business transacted at any special meeting
of stockholders shall be limited to matters relating to the purpose
or purposes stated in the notice of meeting. The Board may
postpone, recess, reschedule or cancel any previously scheduled
special meeting of stockholders. Business transacted at any special
meeting of stockholders shall be limited to matters relating to the
purpose or purposes stated in the notice of meeting.
1.4 Notice of Meetings. Except as
otherwise provided by law, notice of each meeting of stockholders,
whether annual or special, shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting
to each stockholder entitled to vote at such meeting as of the
record date for determining the stockholders entitled to notice of
the meeting. The notices of all meetings shall state the place, if
any, date and time of the meeting, the means of remote
communications, if any, by which stockholders and proxyholders may
be deemed to be present in person and vote at such meeting, and the
record date for determining the stockholders entitled to vote at
the meeting (if such date is different from the record date for
stockholders entitled to notice of the meeting). The notice of a
special meeting shall state, in addition, the purpose or purposes
for which the meeting is called.
1.5 Voting List. The Corporation
shall prepare, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote
at the meeting (provided, however, if the record date for
determining the stockholders entitled to vote is less than ten (10)
days before the date of the meeting, the list shall reflect the
stockholders entitled to vote as of the tenth day before the
meeting date), 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, for a period of at least ten (10) days prior 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. If the
meeting is to be held at a place, then 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. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination
of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of
the meeting. Except as otherwise provided by law, the list shall
presumptively determine the identity of the stockholders entitled
to vote at the meeting and the number of shares held by each of
them.
1.6 Quorum. Except as otherwise
provided by law, the Certificate of Incorporation or these Bylaws,
the holders of a majority in voting power of the shares of the
capital stock of the Corporation issued and outstanding and
entitled to vote at the meeting, present in person, present by
means of remote communication in a manner, if any, authorized by
the Board in its sole discretion, or represented by proxy, shall
constitute a quorum for the transaction of business; provided, however, that where a separate
vote by a class or classes or series of capital stock is required
by law or the Certificate of Incorporation, the holders of a
majority in voting power of the shares of such class or classes or
series of the capital stock of the Corporation issued and
outstanding and entitled to vote on such matter, present in person,
present by means of remote communication in a manner, if any,
authorized by the Board in its sole discretion, or represented by
proxy, shall constitute a quorum entitled to take action with
respect to the vote on such matter. A quorum, once established at a
meeting, shall not be broken by the withdrawal of enough votes to
leave less than a quorum.
1.7 Adjournments. Any meeting of
stockholders, annual or special, may be adjourned from time to time
to any other time and to any other place at which a meeting of
stockholders may be held under these Bylaws by the Board, the
chairman of the meeting or, if directed to be voted on by the
chairman of the meeting, by the stockholders present or represented
at the meeting and entitled to vote thereon, although less than a
quorum. Notice need not be given of the adjourned meeting other
than an announcement at the meeting at which the adjournment is
taken of the hour, date and place, if any, to which the meeting is
adjourned and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person
and vote at such adjourned meeting; provided, however, that if the
adjournment is for more than thirty (30) days, a notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. If after the adjournment a new
record date for determination of stockholders entitled to vote is
fixed for the adjourned meeting, the Board shall fix as the record
date for determining stockholders entitled to notice of such
adjourned meeting the same or an earlier date as that fixed for
determination of stockholders entitled to vote at the adjourned
meeting, and shall give notice of the adjourned meeting to each
stockholder of record as of the record date so fixed for notice of
such adjourned meeting. At the adjourned meeting, the Corporation
may transact any business which might have been transacted at the
original meeting.
1.8 Proxies. Each stockholder of
record entitled to vote at a meeting of stockholders may vote in
person (including by means of remote communications, if any, by
which stockholders may be deemed to be present in person and vote
at such meeting) or may authorize another person or persons to vote
for such stockholder by a proxy executed or transmitted in a manner
permitted by applicable law. No such proxy shall be voted upon
after three years from the date of its execution, unless the proxy
expressly provides for a longer period. A proxy shall be
irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A stockholder may revoke any proxy
which is not irrevocable by attending the meeting and voting in
person or by delivering to the Secretary of the Corporation a
revocation of the proxy or a new proxy bearing a later date. Except
as otherwise limited therein or as otherwise provided by law,
proxies authorizing a person to vote at a specific meeting shall
entitle the persons authorized thereby to vote at any adjournment
or postponement of such meeting, but they shall not be valid after
final adjournment of such meeting.
1.9 Action at Meeting. When a
quorum is present at any meeting, any matter other than the
election of directors to be voted upon by the stockholders at such
meeting shall be decided by the vote of the holders of shares of
stock having a majority in voting power of the votes cast by the
holders of all of the shares of stock present or represented at the
meeting and voting affirmatively or negatively on such matter (or
if there are two or more classes or series of stock entitled to
vote as separate classes, then in the case of each such class or
series, the holders of a majority in voting power of the shares of
stock of that class or series present or represented at the meeting
and voting affirmatively or negatively on such matter), except when
a different vote is required by express provision of applicable
law, regulation applicable to the Corporation or its securities,
the rules or regulations of any stock exchange applicable to the
Corporation, the Certificate of Incorporation or these Bylaws, in
which case such express provisions shall govern. Voting at meetings
of stockholders need not be by written ballot. At all meetings of
stockholders for the election of directors at which a quorum is
present a plurality of the votes cast shall be sufficient to
elect.
1.10 Action
Without a Meeting. Except as otherwise provided in the
Certificate of Incorporation, the stockholders are required or
permitted to take any action by vote, such action may be taken
without a meeting, without prior notice and without a vote, if a
written consent or electronic transmission, setting forth the
action so taken, shall be signed or e-mailed by the holders of
outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a
meeting called for such purpose.
1.11 Notice
of Stockholder Business and Nominations.
(A) Annual
Meetings of Stockholders. (1) Nominations of persons for
election to the Board and the proposal of other business to be
considered by the stockholders may be made at an annual meeting of
stockholders only (a) pursuant to the Corporation's notice of
meeting (or any supplement thereto), (b) by or at the direction of
the Board or any committee thereof or (c) by any stockholder of the
Corporation who was a stockholder of record of the Corporation at
the time the notice provided for in this Section 1.10 is delivered
by such stockholder to the Secretary of the Corporation, who is
entitled to vote at the meeting upon such election of directors or
upon such other business, as the case may be, and who complies with
the notice procedures set forth in this Section 1.10.
(2) For
any nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this Section 1.10, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation (and
must timely provide any updates or supplements to such notice at
such times and in such forms provided by this Section 1.10) and any
such proposed business (other than the nominations of persons for
election to the Board) must constitute a proper matter for
stockholder action. 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
ninetieth (90th) day, nor earlier than the close of business on the
one hundred twentieth (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 more than thirty (30) days before
or more than seventy (70) days after such anniversary date, notice
by the stockholder must be so delivered not earlier than the close
of business on the one hundred twentieth (120th) day prior to such
annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or
the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made by the Corporation);
provided,
further, that for
purposes of the 2020 annual meeting of stockholders, which is the
first annual meeting following the adoption of these Bylaws, notice
by the stockholders must be so delivered not later than the close
of business on the tenth (10th) day following the day on which
public announcement of the adoption of these Bylaws is first made
by the Corporation. In no event shall the public announcement of an
adjournment, postponement or recess of an annual meeting commence a
new time period (or extend any time period) for the giving of a
stockholder's notice as described above. The number of nominees a
stockholder may nominate for election at the annual meeting (or in
the case of a stockholder giving the notice on behalf of a
beneficial owner, the number of nominees a stockholder may nominate
for election at the annual meeting on behalf of such beneficial
owner) shall not exceed the number of directors to be elected at
such annual meeting. To be in proper form for purposes of this
Section 1.10, such stockholder's notice shall set forth: (a) as to
each person whom the stockholder proposes to nominate for election
as a director (i) the name, age, business and residence address,
and principal occupation or employment of the nominee, (ii) and all
other information relating to such nominee 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 and in accordance with Section 14(a) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the
rules and regulations promulgated thereunder, (iii) a reasonably
detailed description of any compensatory, payment or other
financial agreement, arrangement or understanding that such nominee
has with any other person or entity other than the Corporation
including the amount of any payment or payments received or
receivable thereunder, in each case in connection with candidacy or
service as a director of the Corporation, (iv) such person's
written consent to being named in the Corporation’s proxy
statement and associated proxy card as a nominee of the stockholder
and to serving as a director if elected and (v) all information
with respect to such nominee that would be required to be set forth
in a stockholder’s notice pursuant to this Section
1.10 if such nominee were the stockholder giving notice hereunder;
(b) as to any other business that the stockholder proposes to bring
before the meeting, (i) a brief description of the business desired
to be brought before the meeting, (ii) the text of the proposal or
business (including the text of any resolutions proposed for
consideration and in the event that such business includes a
proposal to amend the Bylaws of the Corporation, the language of
the proposed amendment), (iii) the reasons for conducting such
business at the meeting, (iv) any direct or indirect material
interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made and any other
person or persons with whom such stockholder or beneficial owner,
if any, has any agreement, arrangement or understanding in
connection with such proposal and (v) such other information
relating to any proposed item of business as the Corporation may
reasonably require to determine whether such proposed item of
business is a proper matter for stockholder action; and (c) as to
the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the Corporation's
books, and of such beneficial owner, (ii) the class or series and
number of shares of capital stock of the Corporation which are,
directly or indirectly, owned beneficially (within the meaning of
Rule 13d-3 under the Exchange Act) or of record by such stockholder
and such beneficial owner (provided, that such stockholder and the
beneficial owner, if any, on whose behalf the nomination or
proposal is made shall in all events be deemed to beneficially own
any shares of any class or series and number of shares of capital
stock of the Corporation as to which such stockholder or beneficial
owner, if any, has a right to acquire beneficial ownership at any
time in the future), (iii) a description of any agreement,
arrangement or understanding with respect to the nomination or
proposal between or among such stockholder and/or such beneficial
owner, any of their respective affiliates or associates, and any
others acting in concert with any of the foregoing (including their
names), including, in the case of a nomination, the nominee, (iv) a
description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests,
options, warrants, convertible securities, stock appreciation or
similar rights, hedging transactions, and borrowed or loaned
shares) that has been entered into as of the date of the
stockholder's notice by, or on behalf of, such stockholder and such
beneficial owners, whether or not such instrument or right shall be
subject to settlement in underlying shares of capital stock of the
Corporation, the effect or intent of which is to mitigate loss to,
manage risk or benefit of share price changes for, or increase or
decrease the voting power of, such stockholder or such beneficial
owner, with respect to securities of the Corporation, (v) a representation that the stockholder
is a holder of record of stock of the Corporation entitled to vote
at such meeting upon such business or nomination, as the case may
be, and intends to appear in person or by proxy at the meeting to
propose such business or nomination, (vi) a representation as to
whether the stockholder or the beneficial owner, if any, intends or
is part of a group which intends (a) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of the
Corporation's outstanding capital stock required to approve or
adopt the proposal or elect the nominee and/or (b) otherwise to
solicit proxies or votes from stockholders in support of such
proposal or nomination, and (vii) any other information relating to
such stockholder and beneficial owner, if any, required to be
disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for, as applicable, the
proposal and/or for the election of directors in an election
contest pursuant to and in accordance with Section 14(a) of the
Exchange Act and the rules and regulations promulgated thereunder.
The foregoing notice requirements of this paragraph (A) of this
Section 1.10 shall be deemed satisfied by a stockholder with
respect to business other than a nomination if the stockholder has
notified the Corporation of his, her or its intention to present a
proposal at an annual
meeting in compliance with applicable rules and regulations
promulgated under the Exchange Act and such stockholder's proposal
has been included in a proxy statement that has been prepared by
the Corporation to solicit proxies for such annual meeting. The
Corporation may require any proposed nominee to furnish such other
information as the Corporation may reasonably require to determine
the eligibility of such proposed nominee to serve as a director of
the Corporation. If requested by the Corporation, the information
required by clause (c) of this paragraph (A)(2) shall be
supplemented by such stockholder and any such beneficial owner not
later than ten (10) days after the record date for the meeting to
disclose such information as of the record date. In addition, a
stockholder seeking to nominate a director candidate or bring other
business before the annual meeting shall promptly provide any other
information reasonably requested by the Corporation.
(3) Notwithstanding
anything in the second sentence of paragraph (A)(2) of this Section
1.10 to the contrary, in the event that the number of directors to
be elected to the Board at the annual meeting is increased
effective after the time period for which nominations would
otherwise be due under paragraph (A)(2) of this Section 1.10 and
there is no public announcement by the Corporation naming the
nominees for the additional directorships at least one hundred
(100) days prior to the first anniversary of the preceding year's
annual meeting, a stockholder's notice required by this Section
1.10 shall also be considered timely, but only with respect to
nominees for the additional directorships, 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 tenth
(10th) day following the day on which such public announcement is
first made by the Corporation.
(B) Special
Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of
meeting. Nominations of persons for election to the Board may be
made at a special meeting of stockholders at which directors are to
be elected pursuant to the Corporation's notice of meeting (1) by
or at the direction of the Board or any committee thereof or (2)
provided that the Board has determined that directors shall be
elected at such meeting, by any stockholder of the Corporation who
is a stockholder of record at the time the notice provided for in
this Section 1.10 is delivered to the Secretary of the Corporation,
who is entitled to vote at the meeting and upon such election and
who complies with the notice procedures set forth in this Section
1.10. The number of nominees a stockholder may nominate for
election at the special meeting (or in the case of a stockholder
giving the notice on behalf of a beneficial owner, the number of
nominees a stockholder may nominate for election at the special
meeting on behalf of such beneficial owner) shall not exceed the
number of directors to be elected at such special meeting. In the
event the Corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board, any
such stockholder entitled to vote in such election of directors may
nominate a person or persons (as the case may be) for election to
such position(s) as specified in the Corporation's notice of
meeting, if the stockholder's notice required by paragraph (A)(2)
of this Section 1.10 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the
close of business on the one hundred twentieth (120th) day prior to
such special meeting and not later than the close of business on
the later of the ninetieth (90th) day prior to such special meeting
or the tenth (10th) day following the day on which the public
announcement is first made of the date of the special meeting and
of the nominees proposed by the Board to be elected at such
meeting. In no event shall the public announcement of an
adjournment, postponement or recess of a special meeting commence a
new time period (or extend any time period) for the giving of a
stockholder's notice as described above.
(C) General.
(1) Except as otherwise expressly provided in any applicable rule
or regulation promulgated under the Exchange Act, only such persons
who are nominated in accordance with the procedures set forth in
this Section 1.10 shall be eligible to be elected at an annual or
special meeting of stockholders of the Corporation 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 1.10.
Except as otherwise provided by law, the chairman of the meeting
shall have the power and duty (a) 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 this Section 1.10 (including whether the stockholder
or beneficial owner, if any, on whose behalf the nomination or
proposal is made, solicited (or is part of a group which solicited)
or did not so solicit, as the case may be, proxies or votes in
support of such stockholder's nominee or proposal in compliance
with such stockholder's representation as required by clause
(A)(2)(c)(vi) of this Section 1.10) and (b) if any proposed
nomination or business was not made or proposed in compliance with
this Section 1.10, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 1.10,
unless otherwise required by law, if the stockholder (or a
qualified representative of the stockholder) does not appear at the
annual or special meeting of stockholders of the Corporation to
present a nomination or proposed business, such nomination shall be
disregarded and such proposed business shall not be transacted,
notwithstanding that proxies in respect of such vote may have been
received by the Corporation. For purposes of this Section 1.10, to
be considered a qualified representative of the stockholder, a
person must be a duly authorized officer, manager or partner of
such stockholder or must be authorized by a writing executed by
such stockholder or an electronic transmission delivered by such
stockholder to act for such stockholder as proxy at the meeting of
stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of such writing
or electronic transmission, at the meeting of
stockholders.
(2) For
purposes of this Section 1.10, “public announcement”
shall include disclosure in a press release reported by the Dow
Jones News Service, Associated Press or other national news service
or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act and the rules and regulations promulgated
thereunder.
(3) Notwithstanding
the foregoing provisions of this Section 1.10, a stockholder shall
also comply with all applicable requirements of the Exchange Act
and the rules and regulations promulgated thereunder with respect
to the matters set forth in this Section 1.10; provided however,
that any references in these Bylaws to the Exchange Act or the
rules and regulations promulgated thereunder are not intended to
and shall not limit any requirements applicable to nominations or
proposals as to any other business to be considered pursuant to
this Section 1.10 (including paragraphs (A)(1)(c) and (B) hereof),
and compliance with paragraphs (A)(1)(c) and (B) of this Section
1.10 shall be the exclusive means for a stockholder to make
nominations or submit other business (other than, as provided in
the penultimate sentence of (A)(2), business other than nominations
brought properly under and in compliance with Rule 14a-8 of the
Exchange Act, as may be amended from time to time). Nothing in this
Section 1.10 shall be deemed to affect any rights (a) of
stockholders to request inclusion of proposals or nominations in
the Corporation's proxy statement pursuant to applicable rules and
regulations promulgated under the Exchange Act or (b) of the
holders of any series of Preferred Stock to elect directors
pursuant to any applicable provisions of the Certificate of
Incorporation, including any Preferred Stock
Designation.
1.12 Conduct
of Meetings; Inspectors of Election.
(A) Meetings of
stockholders shall be presided over by the Chairman of the Board,
if any, or in the Chairman's absence by the Vice Chairman of the
Board, if any, or in the Vice Chairman's absence by the Chief
Executive Officer, or in the Chief Executive Officer's absence, by
the President, or in the President's absence by a Vice President,
or in the absence of all of the foregoing persons by a chairman
designated by the Board. The Secretary shall act as secretary of
the meeting, but in the Secretary's absence the chairman of the
meeting may appoint any person to act as secretary of the
meeting.
(B) The Board may adopt
by resolution such rules, regulations and procedures for the
conduct of any meeting of stockholders of the Corporation as it
shall deem appropriate including, without limitation, such
guidelines and procedures as it may deem appropriate regarding the
participation by means of remote communication of stockholders and
proxyholders not physically present at a meeting. Except to the
extent inconsistent with such rules, regulations and procedures as
adopted by the Board, the chairman of any meeting of stockholders
shall have the right and authority to convene and (for any or no
reason) to recess and/or adjourn the meeting, to prescribe such
rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board or prescribed by the chairman of the
meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting;
(ii) rules and procedures for maintaining order at the meeting and
the safety of those present; (iii) limitations on attendance at or
participation in the meeting to stockholders of record of the
Corporation, their duly authorized and constituted proxies or such
other persons as shall be determined; (iv) restrictions on entry to
the meeting after the time fixed for the commencement thereof; and
(v) limitations on the time allotted to questions or comments by
participants. Unless and to the extent determined by the Board or
the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary
procedure.
(C) The chairman of the
meeting shall announce at the meeting when the polls for each
matter to be voted upon at the meeting will be opened and closed.
After the polls close, no ballots, proxies or votes or any
revocations or changes thereto may be accepted.
(D) The Corporation
may, and if required by law, shall, in advance of any meeting of
stockholders, appoint one or more inspectors of election to act at
the meeting and make a written report thereof. One or more other
persons may be designated as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the chairman of the meeting shall
appoint one or more inspectors to act at the meeting. Unless
otherwise required by law, inspectors may be officers, employees,
agents or representatives of the Corporation. Each inspector,
before entering upon the discharge of such inspector’s
duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the
best of such inspector’s ability. The inspector shall have
the duties prescribed by law and, when the vote is completed, shall
certify the inspector’s determination of the result of the
vote taken and of such other facts as may be required by law. Every
vote taken by ballots shall be counted by a duly appointed
inspector or duly appointed inspectors.
ARTICLE II
DIRECTORS
2.1 General Powers. The business
and affairs of the Corporation shall be managed by or under the
direction of the Board, which may exercise all of the powers of the
Corporation except as otherwise provided by law or the Certificate
of Incorporation.
2.2 Number, Election; Term and
Qualification.
(A) Subject to the
rights of holders of any series of Preferred Stock to elect
directors, the number of the directors of the Corporation shall be
fixed from time to time solely by resolution of the Board. Subject
to the rights of holders of any series of Preferred Stock with
respect to the election of directors, each director of the
Corporation shall hold office until the expiration of the term for
which he or she is elected and until his or her successor has been
duly elected and qualified or until his or her earlier resignation,
death or removal. Election of directors need not be by written
ballot. Directors need not be stockholders of the
Corporation.
(B) During any period
when the holders of any series of Preferred Stock have the right to
elect additional directors as provided for or fixed pursuant to the
provisions of the Certificate of Incorporation, including any
Preferred Stock Designation, then upon commencement and for the
duration of the period during which such right continues: (i) the
then otherwise total number of authorized directors of the
Corporation shall automatically be increased by such specified
number of directors, and the holders of such Preferred Stock shall
be entitled to elect the additional directors so provided for or
fixed pursuant to said provisions, and (ii) each such additional
director shall serve until such director’s successor shall
have been duly elected and qualified, or until such
director’s right to hold such office terminates pursuant to
said provisions, whichever occurs earlier, subject to his earlier
death, disqualification, resignation or removal. Except as
otherwise provided for or fixed pursuant to the provisions of the
Certificate of Incorporation, including any Preferred Stock
Designation, whenever the holders of any series of Preferred Stock
having such right to elect additional directors are divested of
such right pursuant to the provisions of such stock, the terms of
office of all such additional directors elected by the holders of
such stock, or elected to fill any vacancies resulting from the
death, resignation, disqualification or removal of such additional
directors, shall forthwith terminate and the total authorized
number of directors of the Corporation shall be reduced
accordingly.
2.3 Chairman of the Board; Vice Chairman
of the Board. The Board may appoint from its members a
Chairman of the Board and a Vice Chairman of the Board, neither of
whom need be an employee or officer of the Corporation. If the
Board appoints a Chairman of the Board, such Chairman shall perform
such duties and possess such powers as are assigned by the Board
and, if the Chairman of the Board is also designated as the
Corporation's Chief Executive Officer, shall have the powers and
duties of the Chief Executive Officer prescribed in Section 3.7 of
these Bylaws. If the Board appoints a Vice Chairman of the Board,
such Vice Chairman shall perform such duties and possess such
powers as are assigned by the Board. Unless otherwise provided by
the Board, the Chairman of the Board or, in the Chairman's absence,
the Vice Chairman of the Board, if any, shall preside at all
meetings of the Board.
2.4 Quorum. The greater of (a) a
majority of the directors at any time in office and (b) one-third
of the whole Board shall constitute a quorum of the Board. If at
any meeting of the Board there shall be less than a quorum, a
majority of the directors present may adjourn the meeting from time
to time without further notice other than announcement at the
meeting, until a quorum shall be present.
2.5 Action at Meeting. Every act or
decision done or made by a majority of the directors present at a
meeting duly held at which a quorum is present shall be regarded as
the act of the Board, unless a greater number is required by law or
by the Certificate of Incorporation, including any Preferred Stock
Designation.
2.6 Terms of Office. Subject to the
rights of holders of any series of Preferred Stock to elect
directors, each director shall serve for a term ending on the date
of the annual meeting of stockholders following the annual meeting
of stockholders at which such director was elected; provided that
the term of each director shall continue until the election and
qualification of his or her successor and be subject to his or her
earlier death, disqualification, resignation or
removal.
2.7 Newly Created Directorships;
Vacancies. Subject to the rights of holders of any series of
Preferred Stock, any newly created directorship that results from
an increase in the number of directors or any vacancy on the Board
that results from the death, disability, resignation,
disqualification or removal of any director or from any other cause
shall be filled solely by the affirmative vote of a majority of the
total number of directors then in office, even if less than a
quorum, or by a sole remaining director and shall not be filled by
the stockholders; provided that a vacancy created by the removal of
a director by the stockholders may be filled by the stockholders.
Any director elected in accordance with the preceding sentence
shall, in the case of a newly created directorship, hold office for
the full term of the class in which the newly created directorship
was created or, in the case of a vacancy, hold office for the
remaining term of his or her predecessor and in each case until his
or her successor shall be elected and qualified, subject to his or
her earlier death, disqualification, resignation or
removal.
2.8 Removal. Subject to the rights
of holders of any series of Preferred Stock, any director or the
entire Board may be removed from office at any time by the
affirmative vote of the holders of at least a majority in voting
power of the shares then entitled to vote at an election of
Directors.
2.9 Resignation. Any director may
resign by delivering a resignation in writing or by electronic
transmission to the Corporation at its principal office or to the
Chairman of the Board, the Chief Executive Officer, the President
or the Secretary. Such resignation shall be effective upon delivery
unless it is specified to be effective at some later time or upon
the happening of some later event.
2.10 Regular
Meetings. Regular meetings of the Board may be held without
notice at such time and place as shall be determined from time to
time by the Board; provided that any director who
is absent when such a determination is made shall be given notice
of the determination. A regular meeting of the Board may be held
without notice immediately after and at the same place as the
annual meeting of stockholders.
2.11 Special
Meetings. Special meetings of the Board may be called by the
Chairman of the Board, the Chief Executive Officer, the affirmative
vote of a majority of the directors then in office, or by one
director in the event that there is only a single director in
office.
2.12 Notice
of Special Meetings. Notice of the date, place and time of
any special meeting of the Board shall be given to each director
(a) in person or by telephone at least twenty-four
(24) hours in advance of the meeting, (b) by sending
written notice by reputable overnight courier, telecopy, electronic
mail, facsimile or other means of electronic transmission, or
delivering written notice by hand, to such director's last known
business, home or means of electronic transmission address at least
twenty-four (24) hours in advance of the meeting, or
(c) by sending written notice by first-class mail to such
director's last known business or home address at least seventy-two
(72) hours in advance of the meeting. Such notice may be given
by the Secretary or by the Chairman of the Board, the Chief
Executive Officer or one of the directors calling the meeting. A
notice or waiver of notice of a meeting of the Board need not
specify the purposes of the meeting.
2.13 Meetings
by Conference Communications Equipment. Directors may
participate in meetings of the Board or any committee thereof 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 by such means shall constitute
presence in person at such meeting.
2.14 Action
by Consent. Any action required or permitted to be taken at
any meeting of the Board or of any committee thereof may be taken
without a meeting, if all members of the Board or committee, as the
case may be, consent to the action in writing or by electronic
transmission. After an action is taken, the consent or consents
relating thereto shall be filed with the minutes of proceedings of
the Board, or the committee thereof, in the same paper or
electronic form as the minutes are maintained.
2.15 Committees.
The Board may designate one or more committees, each committee to
consist of one or more of the directors of the Corporation with
such lawfully delegable powers and duties as the Board thereby
confers, to serve at the pleasure of the Board. The Board may
designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members of the committee
present at any meeting and not disqualified from voting, whether or
not such member or members constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board
and subject to the provisions of law, shall have and may exercise
all the powers and authority of the Board 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. Each such committee shall keep minutes and make such reports as
the Board may from time to time request. Except as otherwise
provided in the Certificate of Incorporation, these Bylaws, or the
resolution of the Board designating the committee, a committee may
create one or more subcommittees, each subcommittee to consist of
one or more members of the committee, and delegate to a
subcommittee any or all of the powers and authority of the
committee.
2.16 Compensation
of Directors. Directors may be paid such compensation for
their services and such reimbursement for expenses of attendance at
meetings as the Board may from time to time determine. No such
payment shall preclude any director from serving the Corporation or
any of its parent or subsidiary entities in any other capacity and
receiving compensation for such service.
ARTICLE III
OFFICERS
3.1 Titles. The officers of the
Corporation may consist of a Chief Executive Officer, a President,
a Chief Financial Officer, a Treasurer and a Secretary and such
other officers with such other titles as the Board shall from time
to time determine. The Board may appoint such other officers,
including one or more Vice Presidents and one or more Assistant
Treasurers or Assistant Secretaries, as it may deem appropriate
from time to time. The only individuals who shall be considered the
officers of the Corporation shall be those individuals who have
been appointed or elected as an officer of the Corporation by the
Board.
3.2 Election. The officers of the
Corporation shall be elected by the Board.
3.3 Qualification. No officer need
be a stockholder. Any two or more offices may be held by the same
person.
3.4 Tenure. Except as otherwise
provided by law, by the Certificate of Incorporation or by these
Bylaws, each officer shall hold office until such officer's
successor is duly elected and qualified, unless a different term is
specified in the resolution electing or appointing such officer, or
until such officer's earlier death, resignation, disqualification
or removal.
3.5 Resignation and Removal. Any
officer may resign by delivering a resignation in writing or by
electronic transmission to the Corporation at its principal office
or to the Board, the Chief Executive Officer, the President or the
Secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some later time or upon the
happening of some later event. Any officer may be removed at any
time, with or without cause, by the affirmative vote of a majority
of the directors then in office. Except as the Board may otherwise
determine, no officer who resigns or is removed shall have any
right to any compensation as an officer for any period following
such officer's resignation or removal, or any right to damages on
account of such removal, whether such officer's compensation be by
the month or by the year or otherwise, unless such compensation is
expressly provided for in a duly authorized written agreement with
the Corporation
3.6 Vacancies. The Board may fill
any vacancy occurring in any office for any reason and may, in its
discretion, leave unfilled, for such period as it may determine,
any offices. Each such successor shall hold office for the
unexpired term of such officer's predecessor and until a successor
is duly elected and qualified, or until such officer's earlier
death, resignation, disqualification or removal.
3.7 President; Chief Executive
Officer. Unless the Board has designated another person as
the Corporation's Chief Executive Officer, the President shall be
the Chief Executive Officer of the Corporation. The Chief Executive
Officer shall have general charge and supervision of the business
of the Corporation subject to the direction of the Board, and shall
perform all duties and have all powers that are commonly incident
to the office of chief executive or that are delegated to such
officer by the Board. The President shall perform such other duties
and shall have such other powers as the Board or the Chief
Executive Officer (if the President is not the Chief Executive
Officer) may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Chief Executive Officer
or the President (if the President is not the Chief Executive
Officer), the Vice President (or if there shall be more than one,
the Vice Presidents in the order determined by the Board) shall
perform the duties of the Chief Executive Officer and when so
performing such duties shall have all the powers of and be subject
to all the restrictions upon the Chief Executive
Officer.
3.8 Vice Presidents/Other Officers.
Each Vice President and any other officer designated by the Board
shall perform such duties and possess such powers as the Board or
the Chief Executive Officer may from time to time prescribe. The
Board may assign to any Vice President the title of Executive Vice
President or Senior Vice President, and may assign to any Vice
President or other officer any other title selected by the
Board.
3.9 Secretary and Assistant
Secretaries. The Secretary shall perform such duties and
shall have such powers as the Board or the Chief Executive Officer
may from time to time prescribe. In addition, the Secretary shall
perform such duties and have such powers as are incident to the
office of the secretary, including without limitation the duty and
power to give notices of all meetings of stockholders and special
meetings of the Board, to attend all meetings of stockholders and
the Board (other than executive sessions of the Board) and keep a
record of the proceedings, to maintain a stock ledger and prepare
lists of stockholders and their addresses as required, to be
custodian of corporate records and the corporate seal and to affix
and attest to the same on documents.
Any
Assistant Secretary shall perform such duties and possess such
powers as the Board, the Chief Executive Officer or the Secretary
may from time to time prescribe. In the event of the absence,
inability or refusal to act of the Secretary, the Assistant
Secretary (or if there shall be more than one, the Assistant
Secretaries in the order determined by the Board) shall perform the
duties and exercise the powers of the Secretary.
The
chairman of any meeting of the Board or of stockholders may
designate a temporary secretary to keep a record of any
meeting.
3.10 Treasurer
and Assistant Treasurers. The Treasurer shall perform such
duties and shall have such powers as may from time to time be
assigned by the Board or the Chief Executive Officer. In addition,
the Treasurer shall perform such duties and have such powers as are
incident to the office of treasurer, including without limitation
the duty and power to keep and be responsible for all funds and
securities of the Corporation, to deposit funds of the Corporation
in depositories selected in accordance with these Bylaws, to
disburse such funds as ordered by the Board, to make proper
accounts of such funds, and to render as required by the Board
statements of all such transactions and of the financial condition
of the Corporation.
The
Assistant Treasurers shall perform such duties and possess such
powers as the Board, the Chief Executive Officer or the Treasurer
may from time to time prescribe. In the event of the absence,
inability or refusal to act of the Treasurer, the Assistant
Treasurer (or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board) shall perform the
duties and exercise the powers of the Treasurer.
3.11 Salaries.
Officers of the Corporation shall be entitled to such salaries,
compensation or reimbursement as shall be fixed or allowed from
time to time by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that
he is also a director.
3.12 Delegation
of Authority. The Board may from time to time delegate the
powers or duties of any officer to any other officer or agent,
notwithstanding any provision hereof.
ARTICLE IV
CAPITAL
STOCK
4.1 Issuance of Stock. Subject to
the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock of
the Corporation or the whole or any part of any shares of the
authorized capital stock of the Corporation held in the
Corporation's treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board in such manner, for such
lawful consideration and on such terms as the Board may
determine.
4.2 Stock Certificates; Uncertificated
Shares. The shares of the Corporation shall be represented
by certificates, provided that the Board may
provide by resolution or resolutions that some or all of any or all
classes or series of the Corporation's stock shall be
uncertificated shares. Every holder of stock of the Corporation
represented by certificates shall be entitled to have a
certificate, in such form as may be prescribed by law and by the
Board, representing the number of shares held by such holder
registered in certificate form. Each such certificate shall be
signed in a manner that complies with Section 158 of the DGCL and
each of the Chief Executive Officer, the President, a Vice
President, the Secretary, an Assistant Secretary, the Treasurer or
an Assistant Treasurer are duly authorized to sign such
certificates by, or in the name of, the Corporation, unless
otherwise expressly provided in the resolution of the Board
electing such officer.
Each
certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of
Incorporation, these Bylaws, applicable securities laws or any
agreement among any number of stockholders or among such holders
and the Corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction or
a statement of the existence of such restriction.
If the
Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, 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 shall be set forth in full or summarized on the face
or back of each certificate representing shares of such class or
series of stock, provided that in lieu of the
foregoing requirements there may be set forth on the face or back
of each certificate representing shares of such class or series of
stock 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
shares, the registered owner thereof shall be given a notice, in
writing or by electronic transmission, containing the information
required to be set forth or stated on certificates pursuant to
Sections 151, 156, 202(a) or 218(a) of the DGCL or, with respect to
Section 151 of DGCL, 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.
4.3 Transfers. Shares of stock of
the Corporation shall be transferable in the manner prescribed by
law, the Certificate of Incorporation, including any Preferred
Stock Designation, and these Bylaws. Transfers of shares of stock
of the Corporation shall be made only on the books of the
Corporation or by transfer agents designated to transfer shares of
stock of the Corporation. Subject to applicable law, shares of
stock represented by certificates shall be transferred only on the
books of the Corporation by the surrender to the Corporation or its
transfer agent of the certificate representing such shares properly
endorsed or accompanied by a written assignment or power of
attorney properly executed, and with such proof of authority or the
authenticity of signature as the Corporation or its transfer agent
may reasonably require. Except as may be otherwise required by law,
the Certificate of Incorporation, including any Preferred Stock
Designation, or 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 to such stock, 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.
4.4 Lost, Stolen or Destroyed
Certificates. The Corporation may issue a new certificate or
uncertificated shares in place of any previously issued certificate
alleged to have been lost, stolen or destroyed, upon such terms and
conditions as the Board may prescribe, including the presentation
of reasonable evidence of such loss, theft or destruction and the
giving of such indemnity and posting of such bond sufficient to
indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such new certificate or
uncertificated shares.
4.5 Record Date. In order that the
Corporation may determine the stockholders entitled to notice of
any meeting of stockholders or any adjournment thereof, the Board
may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the
Board, and which record date shall, unless otherwise required by
law, not be more than sixty (60) nor less than ten (10) days before
the date of such meeting. If the Board so fixes a date, such date
shall also be the record date for determining the stockholders
entitled to vote at such meeting unless the Board determines, at
the time it fixes such record date, that a later date on or before
the date of the meeting shall be the date for making such
determination. If no record date is fixed by the Board, 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 may fix a new record date for determination of stockholders
entitled to vote at the adjourned meeting, and in such case shall
also fix as the record date for stockholders entitled to notice of
such adjourned meeting the same or an earlier date as that fixed
for determination of stockholders entitled to vote in accordance
herewith at the adjourned meeting.
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 entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board may fix a record
date, which shall not be more than sixty (60) days prior to such
action. If no such 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 adopts the resolution
relating thereto.
4.6 Regulations. The issue and
registration of shares of stock of the Corporation shall be
governed by such other regulations as the Board may
establish.
ARTICLE V
GENERAL
PROVISIONS
5.1 Fiscal Year. Except as from
time to time otherwise designated by the Board, the fiscal year of
the Corporation shall begin on the first day of January of each
year and end on the last day of December in each year.
5.2 Corporate Seal. The corporate
seal shall be in such form as shall be approved by the
Board.
5.3 Waiver of Notice. Whenever
notice is required to be given by law or by the Certificate of
Incorporation, including any Preferred Stock Designation, or these
Bylaws, a written waiver signed by the person entitled to notice,
or a waiver by electronic transmission by the person entitled to
notice, whether before, at or after the time of the event for which
notice is to be given, shall be deemed equivalent to notice
required to be given to such person. Neither the business nor the
purpose of any meeting need be specified in any such waiver.
Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting
for the express purpose of objecting at the beginning of the
meeting, to the transaction of any business because the meeting is
not lawfully called or convened.
5.4 Voting of Securities. Except as
the Board may otherwise designate, the Chief Executive Officer, the
President, the Chief Financial Officer or the Treasurer may waive
notice, vote, consent, or appoint any person or persons to waive
notice, vote or consent, on behalf of the Corporation, and act as,
or appoint any person or persons to act as, proxy or
attorney-in-fact for the Corporation (with or without power of
substitution and re-substitution), with respect to the securities
of any other entity which may be held by this
Corporation.
5.5 Evidence of Authority. A
certificate by the Secretary, or an Assistant Secretary, or a
temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the
Corporation shall as to all persons who rely on the certificate in
good faith be conclusive evidence of such action.
5.6 Certificate of Incorporation.
All references in these Bylaws to the Certificate of Incorporation
shall be deemed to refer to the Certificate of Incorporation of the
Corporation, as amended and/or restated and in effect from time to
time, including any certificate (a “Preferred Stock
Designation”) setting forth the designation of any
series of preferred stock of the Corporation (“Preferred
Stock”).
5.7 Severability. Any determination
that any provision of these Bylaws is for any reason inapplicable,
illegal or ineffective shall not affect or invalidate any other
provision of these Bylaws.
5.8 Pronouns. All pronouns used in
these Bylaws shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the person or
persons may require.
5.9 Manner of Notice. Without
limiting the manner by which notice otherwise may be given
effectively to stockholders, any notice to stockholders given by
the Corporation under any provision of the DGCL, the Certificate of
Incorporation or these Bylaws may be given in writing directed to
the stockholder’s mailing address (or by electronic
transmission directed to the stockholder’s electronic mail
address, as applicable) as it appears on the records of the
Corporation. Notice shall be given (i) if mailed, when deposited in
the United States mail, (ii) if delivered by courier service, the
earlier of when the notice is received or left at the
stockholder’s address, or (iii) if given by electronic mail,
when directed at to such stockholder’s electronic mail
address (unless the stockholder has notified the Corporation in
writing or by electronic transmission of an objection to receiving
notice by electronic mail or such notice is prohibited by the DGCL
to be given by electronic transmission). A notice by electronic
mail must include a prominent legend that the communication is an
important notice regarding the Corporation. A notice by electronic
mail shall be deemed to include any files attached thereto and any
information hyperlinked to a website if such electronic mail
includes the contact information of an officer or agent of the
Corporation who is available to assist with accessing such files or
information. Any notice to stockholders under any provision of the
DGCL, the Certificate of Incorporation or these Bylaws provided by
electronic transmission (other than any such notice given by
electronic mail) may only be given in a form consented to by such
stockholder, and any such notice by electronic transmission shall
be deemed to be given as provided by the DGCL.
5.10 Electronic
Transmission. For purposes of these Bylaws,
“electronic transmission” means any form of
communication, not directly involving the physical transmission of
paper, including the use of, or participation in, one or more
electronic networks or databases (including one or more distributed
electronic networks or databases), that creates a record that may
be retained, retrieved, and reviewed by a recipient thereof, and
that may be directly reproduced in paper form by such a recipient
through an automated process.
ARTICLE VI
AMENDMENTS
These
Bylaws may be altered, amended or repealed, in whole or in part, or
new Bylaws may be adopted by the Board as expressly provided in the
Certificate of Incorporation. In addition, notwithstanding any
other provision of the Certificate of Incorporation or any
provision of law that might otherwise permit a lesser vote, and in
addition to any affirmative vote of the holders of any series of
Preferred Stock required by law or the Certificate of
Incorporation, including any Preferred Stock Designation, these
Bylaws may also be amended, altered or repealed and new Bylaws may
be adopted by the stockholders of the Corporation by the
affirmative vote of the holders of at least a majority in voting
power of the outstanding stock of the Corporation entitled to vote
thereon.
ARTICLE VII
INDEMNIFICATION
AND ADVANCEMENT
7.1 Power to Indemnify in Actions, Suits
or Proceedings other than Those by or in the Right of the
Corporation. Subject to Section 7.3, the Corporation shall
indemnify 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 (other than an action by or in the right of the
Corporation) by reason of the fact that such person is or was a
director or officer of the Corporation, or, while a director or
officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, in and
of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be
in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable
cause to believe that such person's conduct was
unlawful.
7.2 Power to Indemnify in Actions, Suits
or Proceedings by or in the Right of the Corporation.
Subject to Section 7.3, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of
the fact that such person is or was a director or officer of the
Corporation, or, while a director or officer of the Corporation, is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another Corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good
faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the Corporation; except that
no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
7.3 Authorization of
Indemnification. Any indemnification under this Article VII
(unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard
of conduct set forth in Section 7.1 or Section 7.2, as the case may
be. Such determination shall be made, with respect to a person who
is a director or officer at the time of such determination, (i) by
a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than 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 if such directors so direct, by
independent legal counsel in a written opinion or (iv) by the
stockholders. Such determination shall be made, with respect to
former directors and officers, by any person or persons having the
authority to act on the matter on behalf of the Corporation. To the
extent, however, that a present or former director or officer of
the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding set forth in Section 7.1
or Section 7.2 or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection therewith, without the necessity of authorization in the
specific case.
7.4 Good Faith Defined. For
purposes of any determination under Section 7.3, a person shall be
deemed to have acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests
of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe such
person's conduct was unlawful, if such person's action is based on
good faith reliance on the records or books of account of the
Corporation or another enterprise, or on information supplied to
such person by the officers of the Corporation or another
enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information
or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the
Corporation or another enterprise. The term “another
enterprise” as used in this Section 7.4 shall mean any other
corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise of which such person is or was
serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 7.4 shall not be
deemed to be exclusive or to limit in any way the circumstances in
which a person may be deemed to have met the applicable standard of
conduct set forth in Section 7.1 or 7.2, as the case may
be.
7.5 Right of Claimant to Bring
Suit. Notwithstanding any contrary determination in the
specific case under Section 7.3, and notwithstanding the absence of
any determination thereunder, if a claim under Sections 7.1 or 7.2
of this Article VII is not paid in full by the Corporation within
(i) ninety (90) days after a written claim for indemnification has
been received by the Corporation, or (ii) thirty (30) days after a
written claim for an advancement of expenses has been received by
the Corporation, the claimant may at any time thereafter (but not
before) bring suit against the Corporation in the Court of Chancery
in the State of Delaware to recover the unpaid amount of the claim,
together with interest thereon, or to obtain advancement of
expenses, as applicable. It shall be a defense to any such action
brought to enforce a right to indemnification (but not in an action
brought to enforce a right to an advancement of expenses) that the
claimant has not met the standards of conduct which make it
permissible under the DGCL (or other applicable law) for the
Corporation to indemnify the claimant for the amount claimed, but
the burden of proving such defense shall be on the Corporation.
Neither a contrary determination in the specific case under Section
7.3 nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the
claimant has not met any applicable standard of conduct. If
successful, in whole or in part, the claimant shall also be
entitled to be paid the expense of prosecuting such claim,
including reasonable attorneys' fees incurred in connection
therewith, to the fullest extent permitted by applicable
law.
7.6 Expenses Payable in Advance.
Expenses, including without limitation attorneys' fees, incurred by
a current or former director or officer in defending any civil,
criminal, administrative or investigative action, suit or
proceeding that is subject to this Article VII shall be paid by the
Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such current or former director or officer to repay such amount
if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation as authorized in this
Article VII.
7.7 Nonexclusivity of Indemnification and
Advancement of Expenses. The rights to indemnification and
advancement of expenses provided by or granted pursuant to this
Article VII shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may
be entitled under the Certificate of Incorporation, any 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 such office, it being the policy of
the Corporation that, subject to Section 7.11, indemnification of
the persons specified in Sections 7.1 and 7.2 shall be made to the
fullest extent permitted by law. The provisions of this Article VII
shall not be deemed to preclude the indemnification of any person
who is not specified in Section 7.1 or 7.2 but whom the Corporation
has the power or obligation to indemnify under the provisions of
the DGCL, or otherwise.
7.8 Insurance. The Corporation may
purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's
status as such, whether or not the Corporation would have the power
or the obligation to indemnify such person against such liability
under the provisions of this Article VII.
7.9 Certain Definitions. For
purposes of this Article VII, references to “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, 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, employee benefit plan or other enterprise, shall
stand in the same position under the provisions of this Article VII
with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if
its separate existence had continued. For purposes of this Article
VII, references to “fines” shall include any excise
taxes assessed on a person with respect of any 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 Article
VII.
7.10 Survival
of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VII shall, unless otherwise provided when
authorized or ratified, 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.
7.11 Limitation
on Indemnification. Notwithstanding anything contained in
this Article VII to the contrary, except for proceedings to enforce
rights to indemnification (which shall be governed by Section 7.5),
the Corporation shall not be obligated to indemnify any director,
officer, employee or agent in connection with an action, suit
proceeding (or part thereof) initiated by such person unless such
action, suit or proceeding (or part thereof) was authorized by the
Board.
7.12 Contract
Rights. The obligations of the Corporation under this
Article VII to indemnify, and advance expenses to, a person who is
or was a director or officer of the Corporation shall be considered
a contract between the Corporation and such person, and no
modification or repeal of any provision of this Article VII shall
affect, to the detriment of such person, such obligations of the
Corporation in connection with a claim based on any act or failure
to act occurring before such modification or repeal.
ARTICLE VIII
Forum
Selection
Unless
the Corporation consents in writing to the selection of an
alternative forum, (A) (i) any derivative action or proceeding
brought on behalf of the Corporation, (ii) any action asserting a
claim of breach of a fiduciary duty owed by any current or former
director, officer, other employee or stockholder of the Corporation
to the Corporation or the Corporation’s stockholders, (iii)
any action asserting a claim arising pursuant to any provision of
the DGCL, the Certificate of Incorporation or these Bylaws (as
either may be amended or restated) or as to which the DGCL confers
jurisdiction on the Court of Chancery of the State of Delaware or
(iv) any action asserting a claim governed by the internal affairs
doctrine of the law of the State of Delaware shall, to the fullest
extent permitted by law, be exclusively brought in the Court of
Chancery of the State of Delaware or, if such court does not have
subject matter jurisdiction thereof, the federal district court of
the State of Delaware; and (B) the federal district courts of the
United States shall be the exclusive forum for the resolution of
any complaint asserting a cause of action arising under the
Securities Act of 1933, as amended. Notwithstanding the foregoing,
this Article VIII shall not apply to claims seeking to enforce any
liability or duty created by the Securities Exchange Act of 1934,
as amended. To the fullest extent permitted by law, any person or
entity purchasing or otherwise acquiring or holding any interest in
shares of capital stock of the Corporation shall be deemed to have
notice of and consented to the provisions of this Article
VIII.