UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): October 23, 2015
ADEPT TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 0-27122 | 94-2900635 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
| 5960 Inglewood Drive, Pleasanton, CA | 94588 | |||
| (Address of Principal Executive Offices) | (Zip Code) | |||
(925) 245-3400
(Registrant’s telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 2.01 - Completion of Acquisition or Disposition of Assets.
As previously disclosed on September 16, 2015, Adept Technology, Inc., a Delaware corporation (the “Company”), entered into an Agreement and Plan of Merger, dated September 16, 2015 (as amended, the “Merger Agreement”), by and among the Company, OMRON Corporation, a Japanese corporation (“OMRON”), Omron Management Center of America, Inc., a Delaware corporation and wholly-owned subsidiary of OMRON (“OMCA”), and Hoffman Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of OMCA (“Merger Sub”).
Pursuant to the Merger Agreement, Merger Sub commenced a tender offer to purchase all outstanding shares of the Company’s common stock, par value $0.001 per share (the “Shares”), at a price of $13.00 per Share, net to the seller in cash, without interest (the “Offer Price”), subject to any withholding of taxes required by applicable laws, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 23, 2015 (the “Offer to Purchase”), and the related Letter of Transmittal (which, together with the Offer to Purchase, constituted the “Offer”).
The Offer expired at 5:00 PM, New York City time, on Thursday, October 22, 2015. Computershare Inc., the depositary for the Offer (the “Depositary”), advised OMCA and the Company that, as of the expiration of the Offer, a total of approximately 12,198,832 Shares had been validly tendered and not validly withdrawn pursuant to the Offer, representing 83.33% of the Company’s then outstanding Shares. Because the number of Shares validly tendered and not validly withdrawn pursuant to the Offer, together with Shares then beneficially owned by OMRON or any of its subsidiaries, represented at least one Share more than 50% of the number of Shares then outstanding, the Minimum Condition (as defined in the Merger Agreement) for the Offer was satisfied. All other conditions to the Offer having also been satisfied, Merger Sub first accepted all of the Shares for payment and then deposited funds to pay for such Shares with the Depositary, which will act as agent for tendering Company stockholders for the purpose of receiving payments for tendered Shares and transmitting such payments to tendering Company stockholders whose Shares have been accepted for payment, in accordance with the terms of the Offer.
Following consummation of the Offer, all conditions to the Merger (as defined below) set forth in the Merger Agreement had been satisfied, and on October 23, 2015, upon the filing of a certificate of merger with the Secretary of State of the State of Delaware (the “Effective Time”), OMCA completed its acquisition of the Company by consummating a merger of Merger Sub with and into the Company (the “Merger”) without a meeting of stockholders of the Company in accordance with Section 251(h) of the General Corporation Law of the State of Delaware (the “DGCL”). As a result of the Merger, the Company became a wholly owned subsidiary of OMCA. Pursuant to the Merger Agreement, each Share issued and outstanding immediately prior to the Effective Time, other than Shares held in the treasury of the Company or owned by OMRON, OMCA or any direct or indirect wholly owned subsidiary of OMRON, OMCA (including Merger Sub) or the Company immediately prior to the Effective Time, or Shares with respect to which appraisal rights were properly exercised under the DGCL, was converted into the right to receive cash in the amount of the Offer Price, subject to any withholding of taxes required by applicable laws.
Additionally, pursuant to the Merger Agreement, (i) each restricted stock unit (each a “Company Stock Right”) granted under any of the Company Stock Plans (as defined in the Merger Agreement), whether vested or unvested, was cancelled upon consummation of the Offer and, in exchange therefor, converted into the right to receive upon consummation of the Offer an amount in cash (without interest, and subject to deduction for any required withholding tax) equal to the product of (1) the Offer Price and (ii) the number of Shares subject to the vested or earned portion of such Company Stock Right, such vested or earned portion determined in accordance with the terms and conditions of such Company Stock Right, and (ii) each outstanding option to purchase Shares (whether or not vested or exercisable) was cancelled immediately upon the consummation of the Offer and converted into the right to receive upon consummation of the Offer an amount in cash equal to the positive difference between the Offer Price and the exercise price of such option, if any.
The aggregate consideration paid by Merger Sub in the Offer and Merger was approximately $202 million, without giving effect to related transaction fees and expenses.
The information set forth in Item 3.03 and Item 5.01 of this Current Report on Form 8-K is incorporated herein by reference.
The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which was attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on September 16, 2015 and is incorporated herein by reference, and that certain Offer to Purchase and related Letter of Transmittal, that were attached as Exhibits (a)(1) and (a)(2) to the Schedule 14D-9 of the Company, as amended, filed with the SEC on September 23, 2015, and are incorporated herein by reference.
Item 3.01 - Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
On October 23, 2015, in connection with the completion of the Merger, the Company notified The NASDAQ Capital Market (“NASDAQ”) of the completion of the Merger and requested that trading in the Shares be halted and suspended as of the close of business on October 23, 2015 and that the Shares be withdrawn from listing on NASDAQ. The Company also requested that NASDAQ file a delisting application on Form 25 with the SEC to report the delisting of the Shares from NASDAQ. The Shares ceased to trade on NASDAQ at the close of business on October 23, 2015. By operation of law, the delisting will be effective 10 days following the filing of the Form 25.
The Company intends to file with the SEC a certification and notice of termination on Form 15 with respect to the Shares, requesting that the Shares be deregistered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and that the reporting obligations of the Company with respect to the Shares under Sections 13 and 15(d) of the Exchange Act be suspended.
Item 3.03 - Material Modification to Rights of Security Holders.
As a result of the Merger and at the Effective Time, each outstanding Share, other than Shares owned by the Company, OMCA, OMRON or any direct or indirect wholly owned subsidiary of OMRON or OMCA (including Merger Sub), or Shares with respect to which appraisal rights were properly exercised under the DGCL, was converted into the right to receive cash in the amount of the Offer Price, subject to any withholding of taxes required by applicable laws. At the Effective Time, Shares with respect to which Company stockholders had properly exercised appraisal rights under the DGCL were canceled and ceased to exist, and the holders of such Shares ceased to have any rights with respect thereto, except the right to receive the fair value of such Shares in accordance with the provisions of the DGCL unless and until such holder shall have failed to perfect or shall have effectively withdrawn or lost his, her or its appraisal rights, if any, under the DGCL. If any such stockholder shall have failed to perfect or shall have effectively withdrawn or lost such appraisal rights, then such holder’s Shares shall thereupon be treated as if they had been converted into the right to receive cash in the amount of the Offer Price, subject to any withholding of taxes required by applicable laws.
The information disclosed under Item 2.01, Item 3.01 and Item 5.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
Item 5.01 - Changes in Control of Registrant.
On October 23, 2015, upon Merger Sub’s acceptance for payment of all Shares that were validly tendered and not validly withdrawn in accordance with the terms of the Offer, a change in control of the Company occurred. OMCA funded the purchase and conversion of the Shares on behalf of Merger Sub using cash on hand provided by OMRON.
The information disclosed under Item 2.01, Item 3.01, Item 3.03 and Item 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
Item 5.02 - Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On October 23, 2015, Rob Cain (a director of the Company prior to the Effective Time), Nigel Blakeway, Eiji Ikeno, Naoya Ochi and Deron Jackson became the directors of the Company. Accordingly, each of Benjamin A. Burditt, Martin M. Hale, Jr., Michael P. Kelly and Herbert J. Martin, the remaining directors of the Company prior to the Effective Time, resigned from the board of directors of the Company effective at the Effective Time.
The information disclosed under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.02.
Item 5.03 - Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Pursuant to the Merger Agreement, at the Effective Time, the Company’s certificate of incorporation was amended and restated in its entirety (the “Amended and Restated Certificate of Incorporation”).
On October 23, 2015, the Company’s by-laws were amended and restated in their entirety (the “Amended and Restated By-laws”). The Amended and Restated Certificate of Incorporation and Amended and Restated By-laws are attached hereto as Exhibit 3.1 and Exhibit 3.2, respectively, and are incorporated herein by reference.
Item 9.01 - Financial Statements and Exhibits.
| (d) | Exhibits. |
| Exhibit No. |
Description | |
| 2.1* | Agreement and Plan of Merger, dated as of September 16, 2015, by and among Adept Technology, Inc., OMRON Corporation, Omron Management Center of America, Inc. and Hoffman Acquisition Corp. (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on September 16, 2015) | |
| 2.2 | Offer to Purchase, dated as of September 23, 2015 (incorporated herein by reference to Exhibit (a)(1) to the Schedule 14D-9 filed by the Company on September 23, 2015 (the “Schedule 14D-9”)) | |
| 2.3 | Letter of Transmittal (incorporated herein by reference to Exhibit (a)(2) to the Schedule 14D-9) | |
| 3.1 | Amended and Restated Certificate of Incorporation of Adept Technology, Inc., as amended as of October 23, 2015 | |
| 3.2 | Amended and Restated By-laws of Adept Technology, Inc., as amended as of October 23, 2015 | |
| * | Schedules and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company hereby agrees to furnish supplementally a copy of any of the omitted schedules and exhibits upon request by the Securities and Exchange Commission. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| ADEPT TECHNOLOGY, INC. | ||||||
| Dated: October 23, 2015 | ||||||
| By: | /s/ Seth Halio | |||||
| Seth Halio | ||||||
| Chief Financial Officer | ||||||
EXHIBIT INDEX
| Exhibit No. |
Description | |
| 2.1* | Agreement and Plan of Merger, dated as of September 16, 2015, by and among Adept Technology, Inc., OMRON Corporation, Omron Management Center of America, Inc. and Hoffman Acquisition Corp. (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on September 16, 2015) | |
| 2.2 | Offer to Purchase, dated as of September 23, 2015 (incorporated herein by reference to Exhibit (a)(1) to the Schedule 14D-9 filed by the Company on September 23, 2015 (the “Schedule 14D-9”)) | |
| 2.3 | Letter of Transmittal (incorporated herein by reference to Exhibit (a)(2) to the Schedule 14D-9) | |
| 3.1 | Amended and Restated Certificate of Incorporation of Adept Technology, Inc., as amended as of October 23, 2015 | |
| 3.2 | Amended and Restated By-laws of Adept Technology, Inc., as amended as of October 23, 2015 | |
| * | Schedules and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company hereby agrees to furnish supplementally a copy of any of the omitted schedules and exhibits upon request by the Securities and Exchange Commission. |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ADEPT TECHNOLOGY, INC.
***
FIRST: The name of the Corporation is: Adept Technology, Inc.
SECOND: Its Registered Office in the State of Delaware is to be located at 1209 Orange Street, in the City of Wilmington, County of New Castle, Zip Code 19801. The Registered Agent in charge thereof is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The amount of the total authorized capital stock of the Corporation is Ten Thousand (10,000) Shares of Common Stock with a par value of one-tenth of a cent ($0.001) each.
FIFTH: The Corporation shall have perpetual existence.
SIXTH: Unless and to the extent that the Bylaws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.
SEVENTH: In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized and empowered to make, alter and repeal the Bylaws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any bylaw made by the Board of Directors.
EIGHTH: In all elections for directors, every stockholder entitled to vote shall have the right to vote, in person or by proxy, the number of shares of stock owned by him or her, for as many persons as there are directors to be elected.
NINTH: Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (the “Selected Court”) (or, in the event that the Selected Court does not have jurisdiction, the United States District Court for the State of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (a) any derivative action or proceeding brought by or in the name of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee, agent or affiliate of the Corporation to the Corporation or to the Corporation’s stockholders, (c) any action arising pursuant to any provision of the Delaware General Corporation Law or this Certificate of Incorporation or the Bylaws of the Corporation (as may be amended from time to time) or (d) any action asserting a claim against the Corporation governed by the internal affairs doctrine. If any action the subject matter of which is within the scope of the preceding sentence is filed in a court other than a court located in the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (i) personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce the preceding sentence and (ii) having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
TENTH: Any action required to be taken at a meeting of the stockholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the stockholders entitled to vote with respect to the subject matter thereof.
ELEVENTH: To the fullest extent permitted by the Delaware General Corporation Law, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the Delaware General Corporation Law is hereafter amended to authorize, with the approval of a corporation’s stockholders, further reductions in the liability of a corporation’s directors for breach of fiduciary
duty, then a director of the Corporation shall not be liable for any such breach to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Any repeal or modification of the foregoing provisions of this Article ELEVENTH shall not adversely affect any right or protection of a director of the Corporation with respect to any acts or omissions of such director occurring prior to such repeal or modification.
TWELFTH: To the fullest extent permitted by the Delaware General Corporation Law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers, employees and other agents of the Corporation (and any other persons to which the Delaware General Corporation Law permits the Corporation to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the Delaware General Corporation Law, subject only to limits created by applicable law (statutory or non-statutory), with respect to actions for breach of duty to a corporation, its stockholders and others. Any repeal or modification of any of the foregoing provisions of this Article TWELFTH shall not adversely affect any right or protection of any such agent or other person existing at the time of, or increase the liability of any such agent or other person with respect to any acts or omissions of such agent or other person occurring prior to, such repeal or modification.
* * * *
Exhibit 3.2
ADEPT TECHNOLOGY, INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation shall be located in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation 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
STOCKHOLDERS
SECTION 1. PLACE OF MEETING. Meetings of stockholders may be held at such place, if any, as may be designated by the Board of Directors or officers calling such meetings.
SECTION 2. ANNUAL MEETING. The annual meeting of the stockholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held at such date, time and place, if any, as shall be determined by the Board of Directors and stated in the notice of the meeting.
SECTION 3. SPECIAL MEETINGS. Special meetings of the stockholders may be called by the Board of Directors.
SECTION 4. NOTICE. A notice stating the date, time and place (if any) of the meeting, and in case of a special meeting, the purpose or purposes thereof, shall be given to each stockholder entitled to vote thereat not less than 10 or more than 60 days prior thereto, except as otherwise required by the Certificate of Incorporation or applicable law. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid.
Without limiting the foregoing, any notice to stockholders given by the Corporation pursuant to this Section 4 of Article II shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholders by written notice to the Corporation and shall also be deemed revoked if (a) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (b) such inability becomes known to the Secretary of the Corporation, the transfer agent or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given by a form of electronic transmission in accordance with these Bylaws shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network, together with separate notice to the stockholder of such specific posting, upon the later of such
posting and the giving of such separate notice; and (iv) if by another form of electronic transmission, when directed to the stockholder. For purposes of these Bylaws, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, 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.
Any notice to stockholders given by the Corporation may be given by a single written notice to stockholders who share an address if consented to by the stockholders at such address to whom such notice is given. Any such consent shall be revocable by the stockholders by written notice to the Corporation. Any stockholder who fails to object in writing to the Corporation, within 60 days of having been given written notice by the Corporation of its intention to send the single notice as set forth in this Section 4 of Article II shall be deemed to have consented to receiving such single written notice.
Any previously scheduled meeting of the stockholders may be postponed by resolution of the Board of Directors upon notice given prior to the date previously scheduled for such meeting of stockholders.
SECTION 5. ADJOURNED MEETINGS. When a meeting is adjourned, notice of the adjourned meeting need not be given if the time and place (if any) thereof are announced at the meeting at which the adjournment is taken, if the adjournment is for not more than 30 days, and if no new record date is fixed for the adjourned meeting. At the adjourned meeting, the Corporation may transact only such business, which might have been transacted at the original meeting as originally notified.
SECTION 6. QUORUM. The holders of a majority in voting power of the shares of capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by statute or by the Certificate of Incorporation. Whether or not such quorum is present or represented at any meeting of the stockholders, the chairman of the meeting or, subject to the provisions of the Certificate of Incorporation, the holders of a majority in voting power of the shares of capital stock entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting. At such adjourned meeting at which a quorum shall be present or represented, only such business which may have been transacted at the meeting as originally notified may be transacted. Unless otherwise required by law, the Certificate of Incorporation, these Bylaws, or pursuant to any regulation applicable to the Corporation or its stockholders, when a quorum is present at any meeting, the vote of the holders of a majority in voting power of shares of capital stock having voting power present in person or represented by proxy shall decide any questions brought before such meeting (other than the election of directors). Except as otherwise set forth in the Certificate of Incorporation with respect to the right of the holders of any series of Preferred Stock or any other series or class of stock to elect additional directors under specified circumstances, at all meetings of stockholders for the election of directors at which a quorum is present, a plurality of the votes cast thereat shall elect directors.
2
SECTION 7. VOTING. Subject to the provisions of the Certificate of Incorporation, including the rights of any holder of Preferred Stock, each stockholder shall at every meeting of the stockholders be entitled to one vote for each share of the capital stock having voting power held by such stockholder. Except as otherwise provided by the Certificate of Incorporation, elections of directors need not be by written ballot.
Such votes may be cast in person or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy 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.
SECTION 8. FIXING OF RECORD DATE. 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, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action (other than action by consent in writing without a meeting), the Board of Directors 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 of Directors, and which record date: (a) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, be not more than 60 nor less than ten days before the date of such meeting; and (b) in the case of any other action (other than action by consent in writing without a meeting), shall be not more than 60 days prior to such other action. If no record date is fixed: (a) 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; and (b) the record date for determining stockholders for any other purpose (other than action by consent in writing without a meeting) shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. 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.
SECTION 9. ACTION WITHOUT MEETING.
(a) Any action to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action to be so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by applicable law, be given to those stockholders who have not consented in
3
writing, and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation.
(b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors 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 of Directors, and which record date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting: (i) when no prior action by the Board of Directors is required by applicable law, the record date for such purpose shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded; and (ii) if prior action by the Board of Directors is required by applicable law, the record date for such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
(c) Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days after the earliest dated written consent received in accordance with this Section 9 of Article II, a valid written consent or valid written consents signed by a sufficient number of stockholders to take such action are delivered to the Corporation in the manner prescribed in this Section 9 of Article II and applicable law, and not revoked.
SECTION 10. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Secretary of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting, or (b) during ordinary business hours at the principal place of business of the Corporation. 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. Except as otherwise provided by law, the stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 10 of Article II or to vote in person or by proxy at any meeting of stockholders.
SECTION 11. INSPECTOR OF ELECTIONS. The Corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the Corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the
4
meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (a) ascertain the number of shares of capital stock of the Corporation outstanding and the voting power of each such share, (b) determine the shares of capital stock of the Corporation represented at the meeting and the validity of proxies and ballots, (c) count all votes and ballots, (d) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (e) certify their determination of the number of shares of capital stock of the Corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL. The business and affairs of the Corporation shall be managed by the Board of Directors. Directors need not be stockholders.
(a) Election and Tenure of Directors. All directors shall be elected at the annual meeting of the stockholders, except as provided in this Section 2 of Article III, and each director elected shall hold office until the earliest of the next annual meeting of stockholders after such director’s election, his or her death, retirement or resignation or until his or her respective successor is duly elected and qualified.
(b) Number of Directors. The Board of Directors shall consist of between 1 and 12 members. The number of directors of the Board of Directors may be determined or altered by a majority of the directors or by the stockholders.
SECTION 2. VACANCIES. Except as otherwise provided by law or the Certificate of Incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled solely by a majority of the directors then in office, though less than a quorum, and the directors so chosen shall hold office until the next annual election or until their respective successors are duly elected and qualified.
SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held without notice at such times and at such places as may be determined from time to time by the Board of Directors or its Chairman.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board or any director. The person or persons authorized to call special meetings of the Board of Directors may fix any place for holding any special meeting of the Board of Directors called by them.
5
SECTION 5. NOTICE. Notice of any special meeting shall be given at least 24 hours prior thereto in any form permitted by law and delivered to the directors in any manner permitted by law, including by telephone, facsimile or other means of electronic communication. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid.
SECTION 6. QUORUM. At all meetings of the Board, a majority of the total number of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise provided by the Certificate of Incorporation or applicable law. If a quorum shall not be present at any meeting of the Board of Directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
SECTION 7. ACTION WITHOUT MEETING. Unless otherwise restricted the Certificate of Incorporation or these 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 such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee in accordance with applicable law.
SECTION 8. ACTION BY CONFERENCE TELEPHONE. Unless otherwise restricted by the Certificate of Incorporation or applicable law, members of the Board of Directors or any committee thereof may participate in a meeting of such Board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Bylaw shall constitute presence in person at such meeting.
SECTION 9. COMMITTEES. The Board of Directors, by resolution adopted by the majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors. 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 any member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not a member of the Board of Directors, to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in such resolution, shall have any may exercise all of the powers 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 amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the bylaws of the Corporation; and, unless the resolution expressly so provides, such committee shall not have the power or authority to declare a dividend or to authorize the issuance of stock.
6
SECTION 10. COMPENSATION OF DIRECTORS. Except as approved by the stockholders, no director shall receive any salary, fee or other remuneration for services rendered to or on behalf of the Corporation or otherwise in his or her capacity as a Director.
ARTICLE IV
OFFICERS
SECTION 1. POSITIONS AND ELECTION. The officers of the Corporation shall be elected by the Board of Directors and shall include a President, a Treasurer and a Secretary. The Board of Directors, in its discretion, may also elect a Chairman (who must be a director), one or more Vice Chairmen (who must be directors), a Chief Executive Officer and one or more Vice Presidents, Assistant Treasurers, Assistant Secretaries and other officers. Any individual may be elected to, and may hold, more than one office of the Corporation.
SECTION 2. ELECTION AND TERM OF OFFICE. Each officer of the Corporation shall hold office until such officer’s successor is elected and qualified or until such officer’s earlier death, resignation or removal. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors at any time with or without cause by the majority vote of the members of the Board of Directors then in office. The removal of an officer shall be without prejudice to his or her contract rights, if any. The election or appointment of an officer shall not of itself create contract rights. Any officer of the Corporation may resign at any time by giving written notice of his or her resignation to the President or the Secretary. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its receipt. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Should any vacancy occur among the officers, the position shall be filled for the unexpired portion of the term by appointment made by the Board of Directors.
SECTION 3. THE PRESIDENT; CHIEF EXECUTIVE OFFICER. The President or, if elected, the Chief Executive Officer shall have general supervision over the business of the Corporation and other duties incident to the office of president or chief executive officer, as the case may be, and any other duties as may be from time to time assigned to the President or, if elected, the Chief Executive Officer by the Board of Directors and subject to the control of the Board of Directors in each case.
SECTION 4. THE VICE PRESIDENTS. Each Vice President shall have such powers and perform such duties as may be assigned to him or her from time to time by the Chief Executive Officer, President or Board of Directors.
SECTION 5. THE SECRETARY. The Secretary of the Corporation shall keep the minutes of the proceedings of the stockholders and the Board of Directors; he or she shall give, or cause to be given; all notices in accordance with the provisions of these Bylaws or as required by law; he or she shall be custodian of the corporate records and of the seal of the Corporation; he or she shall keep at the registered office or principal place of business of the Corporation a record of the stockholders of the Corporation, giving the names and addresses of all such stockholders (which addresses shall be furnished to the Secretary by such stockholders) and the number and class of the shares held by each; he shall have general charge of the stock transfer
7
books of the Corporation; and in general he or she shall perform all duties as from time to time may be assigned to him or her by the Chief Executive Officer, President or by the Board of Directors.
SECTION 6. THE TREASURER. The Treasurer shall have the custody of the corporate funds and securities and shall keep, or cause to be kept, correct and complete books and records of account, including full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors; and in general he shall perform all the duties incident to the office of Treasurer and such other duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the Chief Executive Officer, President or the Board of Directors.
SECTION 7. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Assistant Secretaries and Assistant Treasurers, if any, in general shall perform such duties as from time to time may be assigned to them by the Secretary, or the Treasurer, respectively, or by the Chief Executive Officer, President or the Board of Directors.
SECTION 8. COMPENSATION AND EXPENSES. Except as provided in any service agreement approved by the Board of Directors, no officer shall receive any salary, fee or other remuneration for services rendered to or on behalf of the Corporation or otherwise in his or her capacity as an officer. Each officer shall be reimbursed for all proper, direct expenses he or she reasonably incurs on behalf of the Corporation in performing his or her duties as an officer either (a) in the Board of Director’s sole discretion or (b) if such expenses are pre-approved in writing, in either event upon submission of appropriate and all other reasonably requested documentation.
ARTICLE V
STOCK OF THE CORPORATION
SECTION 1. SHARES OF STOCK. The shares of capital stock of the Corporation shall be represented by a certificate, unless and until the Board of Directors adopts a resolution permitting shares to be uncertificated. Notwithstanding the adoption of any such resolution providing for uncertificated shares, every holder of stock 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 a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by such stockholder in the Corporation.
SECTION 2. FACSIMILE SIGNATURES. The signature of the Chairman of the Board of Directors, President, Vice President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may be facsimile. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the Corporation.
8
SECTION 3. LOST CERTIFICATES. The Board of Directors may direct a new certificate or certificates to be issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum 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 or destroyed.
SECTION 4. TRANSFER OF STOCK. Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation, and in the case of certificated shares of stock, only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and upon the surrender of the certificate therefore, properly endorsed for transfer and payment of all necessary transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares or by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the Corporation shall determine to waive such requirement. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.
SECTION 5. 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 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 the State of Delaware.
ARTICLE VI
CHECKS
SECTION 1. CHECKS. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.
ARTICLE VII
DIVIDENDS
Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to and in accordance with applicable law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.
9
ARTICLE VIII
INDEMNIFICATION
SECTION 1. INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
(a) Indemnification of Directors, Officers and Employees. The Corporation shall, to the maximum extent and in the manner permitted by the Delaware General Corporation Law, indemnify each of its directors, officers and employees against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was a director, officer or employee of the Corporation.
(b) Advancement of Expenses. The Corporation shall, to the maximum extent permitted by the Delaware General Corporation Law, pay in advance of the final disposition of any proceeding described in Section 1(a) of this Article VIII all expenses incurred by each of its directors and officers in connection with the defense or settlement of such proceeding. Expenses shall be paid by the Corporation within twenty (20) days after receipt by the Corporation of a statement or statements from a director or officer requesting such payment or payments from time to time. Such statement or statements shall reasonably evidence the expenses and costs incurred in connection with the defense or settlement of such proceeding and shall include or be accompanied by an undertaking by or on behalf of the director or officer to reimburse such amounts if it is finally determined, after the exhaustion of all appeals and proceedings by a court of competent jurisdiction, that a director or officer is not entitled to be indemnified against such expenses by the Corporation as provided in these Bylaws or otherwise. An undertaking to reimburse such amounts is not required to be secured.
(c) Definitions. For purposes of this Article VIII, a “director,” “officer” or “employee” of the Corporation includes any person (i) who is or was a director, officer or employee of the Corporation, (ii) who is or was serving at the request of the Corporation as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was a director, officer or employee of a corporation which was a predecessor corporation of the Corporation or of another enterprise at the request of such predecessor corporation.
SECTION 2. NON-EXCLUSIVITY OF RIGHTS. The Corporation may enter into indemnification agreements with its directors, officers or employees that provide for indemnification by the Corporation. The rights to indemnification and to the advancement of expenses conferred in this Article VIII shall not be exclusive of any other right which any person may have or hereafter acquire under any law, agreement, vote of stockholders or directors, provisions of the Certificate of Incorporation or these Bylaws or otherwise.
SECTION 3. INSURANCE. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
10
SECTION 4. EFFECT OF AMENDMENT. Any amendment, repeal or modification of any provision of this Article VIII that adversely affects any right of an indemnitee or his or her successors shall be prospective only, and shall not adversely affect any right or protection conferred on a person pursuant to this Article VIII with respect to any proceeding involving any occurrence or alleged occurrence, or any action or omission to act, that took place prior to such amendment, repeal or modification.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
ARTICLE X
WAIVER OF NOTICE
Whenever any notice whatever is required to be given by law, the Certificate of Incorporation or these Bylaws, a written waiver thereof, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transactions of business because the meeting is not lawfully called or convened.
ARTICLE XI
SEAL
The Corporation shall have no corporate seal, and the words “NO CORPORATE SEAL” may be applied to any document executed by the Corporation where a corporate seal would otherwise properly be imprinted.
ARTICLE XII
AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws adopted by a majority vote of the Board of Directors or the stockholders.
11