UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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): August 13, 2012 (August 8, 2012)
AMYLIN PHARMACEUTICALS, LLC
(Exact name of registrant as specified in its charter)
Delaware | 0-19700 | 33-0266089 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
9360 Towne Centre Drive
San Diego, California 92121
(Address of principal executive offices and zip code)
Registrants telephone number, including area code: (858) 552-2200
Check the appropriate box below if the Form 8K 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 1.01 | Entry into a Material Definitive Agreement |
In connection with the consummation of the Merger (as defined below) and pursuant to the terms of the Indenture (the Indenture), dated June 8, 2007, by and between Amylin Pharmaceuticals, Inc. (the predecessor in interest to Amylin Pharmaceuticals, LLC, the Company) and The Bank of New York Trust Company, N.A. (the Trustee), with respect to the Companys outstanding 3.00% Convertible Senior Convertible Notes due 2014 (the Convertible Notes), the Company and the Trustee entered into the First Supplemental Indenture, dated as of August 8, 2012 (the Supplemental Indenture), pursuant to which, during such time following the Merger that the Convertible Notes are convertible, each $1,000 in principal amount of the Convertible Notes will be convertible only into the cash consideration that a holder of such number of shares of common stock of the Company, par value $0.001 per share (the Shares), equal to the conversion rate for the Convertible Notes immediately prior to the Merger would have been entitled to receive in the Merger.
This description of the Indenture and the Supplemental Indenture is qualified in its entirety by reference to the Indenture filed as Exhibit 4.1 to the Companys Current Report on Form 8-K filed with the Securities and Exchange Commission (the SEC) on June 8, 2007 and the Supplemental Indenture filed as Exhibit 4.2 to this Current Report, each of which are incorporated herein by reference.
As previously disclosed in the Current Report on Form 8-K filed on November 8, 2011 by the Company, on November 7, 2011, the Company entered into a Settlement and Termination Agreement (the Settlement Agreement) with Eli Lilly and Company (Eli Lilly). Pursuant to the terms of the Settlement Agreement, the Company agreed to make certain revenue sharing obligation payments to Lilly of up to $1,200,000,000 (the RSO). Simultaneously with the execution of the Settlement Agreement, the Company entered into a promissory note in favor of Eli Lilly for an initial principal amount of $1,200,000,000 (the RSO Note). On August 8, 2012, the Company repaid the remaining principal amount outstanding under the RSO Note (and the accrued and unpaid interest on such amount) in satisfaction of the RSO under the Settlement Agreement (approximately $1,258,874,596.00 to Eli Lilly). In connection with the repayment of the RSO Note, Eli Lilly and the Company amended the terms of the Settlement Agreement to terminate the Companys obligations under the Settlement Agreement with respect to the RSO.
Item 2.01 | Completion of Acquisition or Disposition of Assets |
As previously disclosed, on June 29, 2012, the Company, entered into an Agreement and Plan of Merger (the Merger Agreement) with Bristol-Myers Squibb Company, a Delaware corporation (Bristol-Myers Squibb), and B&R Acquisition Company, a Delaware corporation and wholly owned subsidiary of Bristol-Myers Squibb (Merger Sub). Pursuant to the Merger Agreement, Merger Sub commenced an offer (the Offer) to acquire all outstanding Shares, at a price of $31.00 per Share (the Offer Price), net to the seller in cash, without interest and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase (as amended or supplemented), dated July 10, 2012 (the Offer to Purchase), and in the related Letter of Transmittal.
On August 8, 2012, Bristol-Myers Squibb announced the completion of the Offer. The Offer expired at 5:00 P.M, New York City time, on August 7, 2012, as scheduled and was not extended. According to the depositary for the Offer, 140,550,153 Shares (not including Shares tendered by notice of guaranteed delivery and not actually delivered) were validly tendered and not withdrawn as of the expiration of the Offer, representing approximately 85.55% of the issued and outstanding Shares. Merger Sub accepted for payment all Shares that were validly tendered and not withdrawn in accordance with the terms of the Offer. In order to accomplish the Merger (as defined below), on August 8, 2012, pursuant to the terms and subject to the conditions of the Merger Agreement, Merger Sub exercised the Top-Up Option (as defined below), which permitted Merger Sub to purchase the Top-Up Shares (as defined below). Immediately following the issuance of the Top-Up Shares to Merger Sub, Merger Sub owned in excess of 90% of the Shares outstanding at such time.
On August 8, 2012, Merger Sub effected a short-form merger under Delaware law, pursuant to which Merger Sub merged with and into the Company (the Merger), with the Company surviving as a wholly-owned subsidiary of Bristol-Myers Squibb. The aggregate consideration in the Offer and the Merger to acquire all of the outstanding Shares, and for payments with respect to restricted stock units and stock options, is approximately $5.3 billion in cash. Bristol-Myers Squibb has funded the consideration for the Shares, restricted stock units and options acquired in the Offer and the Merger through cash on hand, the net proceeds from a notes offering and the issuance of commercial paper, all as previously disclosed in the Offer to Purchase.
Item 2.04 | Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement. |
In connection with the consummation of each of the Offer and the Merger, each of which occurred on August 8, 2012, and pursuant to the Indenture, as supplemented by the Supplemental Indenture, each holder of Convertible Notes is entitled to require the Company to repurchase all of his or her Convertible Notes at a repurchase price of 100% of the principal amount thereof plus all accrued but unpaid interest thereon to, but excluding, the repurchase date designated by the Company, which is September 14, 2012. On August 10, 2012, the Company provided the notice required under the Indenture, as supplemented by the Supplemental Indenture, to holders of the Convertible Notes. As of August 8, 2012, there was $575,000,000 in aggregate principal amount of the Convertible Notes outstanding.
This description of the Indenture and the Supplemental Indenture is qualified in its entirety by reference to the Indenture filed as Exhibit 4.1 to the Companys Current Report on Form 8-K filed with the SEC on June 8, 2007 and the Supplemental Indenture filed as Exhibit 4.2 to this Current Report, each of which are incorporated herein by reference.
Pursuant to the terms of the Amended and Restated Loan Agreement, dated November 7, 2011 (the Lilly Loan), by and between the Company and Eli Lilly, in the principal amount of $165,000,000, upon the consummation of the Offer all outstanding indebtedness under the Lilly Loan became immediately due and payable to Eli Lilly. Accordingly, upon the consummation of the Offer, the Company paid all outstanding indebtedness and all accrued and unpaid interest under the Lilly Loan to Eli Lilly. The aggregate amount paid to Eli Lilly in satisfaction of the Companys obligations under the Lilly Loan was equal to $165,959,658.33.
This description of the Lilly Loan is qualified in its entirety by reference to the Lilly Loan filed as Exhibit 4.9 to the Companys Annual Report on Form 10-K filed with the SEC on February 22, 2012.
Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
As a result of the Offer and the Merger, the Company no longer fulfills the numerical listing requirements of The NASDAQ Stock Market (NASDAQ). Accordingly, on August 8, 2012, the Company notified NASDAQ of its intent to remove the Shares from listing on NASDAQ and requested that NASDAQ file with the SEC a Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), on Form 25 to delist and deregister the Shares. The Company intends to file a Form 15 to suspend its reporting obligations under Section 13(a) and 15(d) of the Exchange Act and to deregister its Shares under Section 12(g) of the Exchange Act as soon as practicable. The information disclosed under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.
Item 3.02 | Unregistered Sale of Equity Securities. |
In order to complete the Merger, on August 8, 2012, pursuant to Section 1.4 of the Merger Agreement, Merger Sub exercised its top-up option (the Top-Up Option) to purchase Shares, and the Company issued 72,680,628 Shares (the Top-Up Shares) to Merger Sub, at a price per Share equal to the Offer Price, pursuant to the Top-Up Option. Merger Sub paid for the Top-Up Shares by delivery of cash and a promissory note. The Top-Up Shares, when added to the number of Shares directly or indirectly owned by Bristol-Myers Squibb and Merger Sub at the time of exercise of the Top-Up Option, represented more than 90% of the Shares outstanding immediately after the issuance of the Top-Up Shares (after giving effect to the issuance of Shares pursuant to the exercise of the Top-Up Option). The Top-Up Shares were issued without registration under the Securities Act of 1933, as amended (the Securities Act), in reliance upon an exemption from registration pursuant to Section 4(2) of the Securities Act, as a transaction by an issuer not involving a public offering.
Item 3.03 | Material Modification to Rights of Security Holders. |
At the effective time of the Merger (the Effective Time), each issued and outstanding Share (other than Shares held by the Company as treasury stock or directly owned by Bristol-Myers Squibb or Merger Sub, and Shares for which appraisal rights are properly demanded in accordance with Delaware law), restricted stock unit and stock option was, by virtue of the Merger and without any action on the part of the holders thereof, cancelled and converted into the right to receive the Offer Price in cash, without interest and less any required withholding taxes and, with respect to stock options, less the applicable exercise price. At the Effective Time, the holders of such Shares ceased to have any rights as stockholders of the Company (other than their right to receive the Offer Price). The information disclosed under Item 2.01, Item 3.01 and 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. |
At the Effective Time, a change of control of the Company occurred and the Company became a wholly-owned subsidiary of Bristol-Myers Squibb. 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 Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Agreements of Certain Officers |
Upon completion of the Merger on August 8, 2012, in accordance with the Merger Agreement, the directors of Merger Sub immediately before the Merger, Jeffrey Galik, Demetrios Kydonieus, P. Joseph Campisi, Jr. and John E. Celentano, became the sole directors of the surviving corporation. Accordingly, each of Daniel M. Bradbury, Paulo F. Costa, Adrian Adams, Teresa Beck, M. Kathleen Behrens, Ph.D., Alexander J. Denner, Ph.D., Karin Eastham, James R. Gavin III, M.D., Ph.D., Jay S. Skyler, M.D., MACP, and Joseph P. Sullivan ceased serving as members of the Companys board of directors at the effective time of the Merger. Information about the new directors of the Company is contained in Annex A to the Schedule 14D-9 filed by the Company on July 10, 2012.
Item 5.03 | Amendment to Articles of Incorporation or Bylaws. |
Pursuant to the Merger Agreement, at the Effective Time, the Companys certificate of incorporation was amended and restated in its entirety so as to read in its entirety as set forth in Annex II to the Merger Agreement (the Amended and Restated Certificate of Incorporation).
Also pursuant to the Merger Agreement, at the Effective Time, the Companys bylaws were amended and restated in their entirety to be identical to the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, except that the name of the company set forth therein is Amylin Pharmaceuticals, Inc. (the Amended and Restated Bylaws).
Shortly after the Effective Time of the Merger on August 8, 2012, the Company was converted into a limited liability company pursuant to Delaware law. The certificate of formation (the Certificate of Formation) filed as Exhibit 3.3, became the Certificate of Formation of the Company and the Limited Liability Company Agreement (the LLC Agreement), dated August 8, 2012 and attached hereto as Exhibit 3.4 became the LLC Agreement of the Company. In connection with the conversion, the Companys name was changed to Amylin Pharmaceuticals, LLC.
The Amended and Restated Certificate of Incorporation, the Amended and Restated Bylaws, the Certificate of Formation and the LLC Agreement are attached hereto as Exhibits 3.1, 3.2, 3.3 and 3.4, respectively, and are incorporated herein by reference.
Item 9.01 | Financial Statements and Exhibits. |
Exhibit No. |
Description | |
3.1 | Amended and Restated Certificate of Incorporation of Amylin Pharmaceuticals, Inc., amended as of August 8, 2012. | |
3.2 | Fifth Amended and Restated Bylaws of Amylin Pharmaceuticals, Inc., amended as of August 8, 2012. | |
3.3 | Certificate of Formation of Amylin Pharmaceuticals, LLC, dated as of August 8, 2012. | |
3.4 | Limited Liability Company Agreement of Amylin Pharmaceuticals, LLC, dated as of August 8, 2012. | |
4.1 | Indenture, dated June 8, 2007, by and between The Bank of New York Trust Company, N.A. and the Company (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed by Amylin Pharmaceuticals, Inc. with the Securities and Exchange Commission on June 8, 2007). | |
4.2 | Supplemental Indenture, dated August 8, 2012, by and between The Bank of New York Trust Company, N.A. and the Company. | |
4.3 | Amended and Restated Loan Agreement, dated November 7, 2011, by and between Amylin Pharmaceuticals, Inc. and Eli Lilly and Company (incorporated by reference to Exhibit 4.9 to the Annual Report on Form 10-K filed by Amylin Pharmaceuticals, Inc. with the Securities and Exchange Commission on February 22, 2012). |
Important Additional Information
This filing and the attached exhibits are neither an offer to purchase nor a solicitation of an offer to sell the Convertible Notes. The repurchase offer for the Convertible Notes required by the terms of the Indenture is being made by a separate notice to holders of the Convertible Notes. Holders of the Convertible Notes are urged to read the notice because it contains important information that such holders should consider before making any decision regarding exercising their right to have their Convertible Notes repurchased.
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.
Amylin Pharmaceuticals, LLC | ||||
August 13, 2012 | ||||
By: | /s/ Demetrios Kydonieus | |||
Name: | Demetrios Kydonieus | |||
Vice President |
Exhibit Index
Exhibit No. |
Description | |
3.1 | Amended and Restated Certificate of Incorporation of Amylin Pharmaceuticals, Inc., amended as of August 8, 2012. | |
3.2 | Fifth Amended and Restated Bylaws of Amylin Pharmaceuticals, Inc., amended as of August 8, 2012. | |
3.3 | Certificate of Formation of Amylin Pharmaceuticals, LLC, dated as of August 8, 2012. | |
3.4 | Limited Liability Company Agreement of Amylin Pharmaceuticals, LLC, dated as of August 8, 2012. | |
4.1 | Indenture, dated June 8, 2007, by and between The Bank of New York Trust Company, N.A. and the Company (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed by Amylin Pharmaceuticals, Inc. with the Securities and Exchange Commission on June 8, 2007). | |
4.2 | Supplemental Indenture, dated August 8, 2012, by and between The Bank of New York Trust Company, N.A. and the Company. | |
4.3 | Amended and Restated Loan Agreement, dated November 7, 2011, by and between Amylin Pharmaceuticals, Inc. and Eli Lilly and Company (incorporated by reference to Exhibit 4.9 to the Annual Report on Form 10-K filed by Amylin Pharmaceuticals, Inc. with the Securities and Exchange Commission on February 22, 2012). |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMYLIN PHARMACEUTICALS, INC.
ARTICLE ONE
The name of the corporation is Amylin Pharmaceuticals, Inc. (hereinafter called the Corporation).
ARTICLE TWO
The address of the Corporations registered office in the state of Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.
ARTICLE THREE
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.
ARTICLE FOUR
The total number of shares which the Corporation shall have the authority to issue is One Hundred (100) shares, all of which shall be shares of Common Stock, with a par value of $0.001 (One Tenth of One Cent) per share.
ARTICLE FIVE
The directors shall have the power to adopt, amend or repeal By-Laws, except as may be otherwise be provided in the By-Laws.
ARTICLE SIX
The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.
ARTICLE SEVEN
To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE SEVEN shall not adversely
affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. The Corporation is authorized to provide indemnification of agents (as defined in Section 145 of the Delaware General Corporation Law) for breach of duty to the Corporation and its stockholders through bylaw provisions, through agreements with the agents, and/or through stockholder resolutions, or otherwise, in excess of the indemnification otherwise permitted by Section 145 of the Delaware General Corporation Law, subject to the limitations on such excess indemnification set forth in Section 102 of the Delaware General Corporation Law.
ARTICLE EIGHT
The Corporation reserves the right to amend or repeal any provisions contained in this Certificate of Incorporation from time to time and at any time in the manner now or hereafter prescribed by the laws of the State of Delaware, and all rights conferred upon stockholders and directors are granted subject to such reservation.
* * * *
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Exhibit 3.2
AMENDED AND RESTATED BYLAWS
BYLAWS
OF
AMYLIN PHARMACEUTICALS, INC.
A Delaware Corporation
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office of the corporation in the State of Delaware shall be located at 2711 Centerville Road, Suite 400, Wilmington Delaware 19808, in the County of New Castle. The name of the corporations registered agent at such address shall be Corporation Service Company. The registered office and/or registered agent of the corporation may be changed from time to time by action of the board of directors.
Section 1.2 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
MEETINGS OF STOCKHOLDERS
Section 2.1 Place and Time of Meetings. An annual meeting of the stockholders shall be held each year for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place of the annual meeting may be determined by resolution of the board of directors or as set by the chief executive officer of the corporation.
Section 2.2 Special Meetings. Special meetings of stockholders may be called for any purpose (including, without limitation, the filling of board vacancies and newly created directorships), and may be held at such time and place, within or without the State of Delaware, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by two or more members of the board of directors or the chief executive officer and shall be called by the chief executive officer upon the written request of holders of shares entitled to cast not less than fifty percent (50%) of the outstanding shares of any series or class of the corporations Capital Stock.
Section 2.3 Place of Meetings. The board of directors may designate any place, either within or without the State of Delaware, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.
Section 2.4 Notice. Whenever stockholders are required or permitted to take action at a meeting, written or printed notice stating the place, date, time, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally or by mail, by or at the direction of the board of directors, the chief executive officer or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends 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.
Section 2.5 Stockholders List. The officer having charge of the stock ledger of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting or, if not so specified, at the place where the meeting is to be held. 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.
Section 2.6 Quorum. Except as otherwise provided by applicable law or by the Certificate of Incorporation, a majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time in accordance with Section 7 of this Article, until a quorum shall be present or represented.
Section 2.7 Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 2.8 Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the Certificate of Incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question. Where a separate vote by class is required, the affirmative vote of the majority of shares of such class present in person or represented by proxy at the meeting shall be the act of such class.
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Section 2.9 Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the Certificate of Incorporation of the corporation or any amendments thereto and subject to Section 4.3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder.
Section 2.10 Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him, her or it by proxy. Every proxy must be signed by the stockholder granting the proxy or by his, her or its attorney-in-fact. No proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed 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 proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally.
Section 2.11 Action by Written Consent. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such 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 so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be signed by the holders of outstanding stock having not less than a majority of the shares entitled to vote, or, if greater, 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, or the corporations principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporations registered office shall be by hand or by certified or registered mail, return receipt requested provided, however, that no consent or consents delivered by certified or registered mail shall be deemed delivered until such consent or consents are actually received at the registered office. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within sixty days of the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.
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ARTICLE III
DIRECTORS
Section 3.1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors.
Section 3.2 Number, Election and Term of Office. The number of directors which shall constitute the board as of the effective date of these Bylaws shall be FOUR (4). Thereafter, the number of directors shall be established from time to time by resolution of the board. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
Section 3.3 Removal and Resignation. Any director or the entire board of directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the corporations Certificate of Incorporation, the provisions of this section shall apply, in respect to the removal without cause or a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon written notice to the corporation.
Section 3.4 Vacancies. Except as otherwise provided by the Certificate of Incorporation of the corporation or any amendments thereto, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority vote of the holders of the corporations outstanding stock entitled to vote thereon or by a majority of the members of the board of directors. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.
Section 3.5 Annual Meetings. The annual meeting of each newly elected board of directors shall be held without other notice than this by-law immediately after, and at the same place as, the annual meeting of stockholders.
Section 3.6 Other Meetings and Notice. Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by resolution of the board. Special meetings of the board of directors may be called by or at the request of the chief executive officer or president on at least 24 hours notice to each director, either personally, by telephone, by mail, or by telegraph; in like manner and on like notice the chief executive officer must call a special meeting on the written request of at least a majority of the directors.
Section 3.7 Quorum, Required Vote and Adjournment. A majority of the total number of directors then in office (without regard to any then vacancies on the board) shall constitute a
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quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. 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 3.8 Committees. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these Bylaws shall have and may exercise the powers of the board of directors in the management and affairs of the corporation except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.
Section 3.9 Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum. In the event that a member and that members alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof 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 of directors to act at the meeting in place of any such absent or disqualified member.
Section 3.10 Communications Equipment. Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.
Section 3.11 Waiver of Notice and Presumption of Assent. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends 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. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.
Section 3.12 Action by Written Consent. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the board of
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directors, or of any committee thereof, may be taken without a meeting if all the then members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee.
ARTICLE IV
OFFICERS
Section 4.1 Number. The officers of the corporation shall be elected by the board of directors and may consist of a chairman, a chief executive officer, a president, one or more vice presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.
Section 4.2 Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
Section 4.3 Removal. Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.
Section 4.4 Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.
Section 4.5 Compensation. Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.
Section 4.6 The Chairman of the Board. The Chairman of the Board, if one shall have been elected, shall be a member of the board, may be an officer of the corporation, and, if present, shall preside at each meeting of the board of directors or shareholders. He shall advise the chief executive officer, and in the chief executive officers absence, other officers of the corporation, and shall perform such other duties as may from time to time be assigned to him by the board of directors.
Section 4.7 The Chief Executive Officer. In the absence of the Chairman of the Board or if a Chairman of the Board shall have not been elected, the chief executive officer shall preside at all meetings of the stockholders and board of directors at which he or she is present; subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall
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see that all orders and resolutions of the board of directors are carried into effect. The chief executive officer shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these Bylaws.
Section 4.8 President; Vice Presidents. The president shall, in the absence or disability of the chief executive officer, act with all of the powers and be subject to all of the restrictions of the chief executive officer. The president shall also perform such other duties and have such other powers as the board of directors, the chief executive officer or these Bylaws may, from time to time, prescribe. The vice-president, if any, or if there shall be more than one, the vice-presidents in the order determined by the board of directors shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice-presidents shall also perform such other duties and have such other powers as the board of directors, the president or these Bylaws may, from time to time, prescribe.
Section 4.9 The Secretary and Assistant Secretaries. The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the chief executive officers supervision, the secretary shall give, or cause to be given, all notices required to be given by these Bylaws or by law; shall have such powers and perform such duties as the board of directors, the chief executive officer or these Bylaws may, from time to time, prescribe; and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the chief executive officer, or secretary may, from time to time, prescribe.
Section 4.10 The Treasurer and Assistant Treasurer. The treasurer shall have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation; shall deposit all monies and other valuable effects in the name and to the credit of the corporation as may be ordered by the board of directors; shall cause the funds of the corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the chief executive officer and the board of directors, at its regular meeting or when the board of directors so requires, an account of the corporation; shall have such powers and perform such duties as the board of directors, the chief executive officer or these Bylaws may, from time to time, prescribe. If required by the board of directors, the treasurer shall give the corporation a bond (which shall be rendered every six years) in such sums and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the office of treasurer and for the restoration to the corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the possession or under the control of the treasurer belonging to the
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corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer. The assistant treasurers shall perform such other duties and have such other powers as the board of directors, the chief executive officer, the president or treasurer may, from time to time, prescribe.
Section 4.11 Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, which officers may include officers of any division of the corporation, other than those whose duties are provided for in these Bylaws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.
Section 4.12 Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officers place during such officers absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 5.1 Nature of Indemnity. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a proceeding), by reason of the fact that he or a person of whom he is the legal representative, is or was a director or officer, of the corporation or is or was serving at the request of the corporation as a director, officer, employee, fiduciary, or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, fiduciary or agent or in any other capacity while serving as a director, officer, employee, fiduciary or agent, shall be indemnified and held harmless by the corporation to the fullest extent which it is empowered to do so by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment) against all expense, liability and loss (including attorneys fees actually and reasonably incurred by such person in connection with such proceeding and such indemnification shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in Section 5.2 hereof, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person or any proceeding by such person against the corporation or its directors, officers, employees or other agents only if (i) such proceeding was authorized by the board of directors of the corporation,(ii) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the General Corporation Law of the State of Delaware or (iii) such indemnification is expressly required to be made by law. The right to indemnification conferred in this Article V shall be a contract right and, subject to Sections 5.2 and 5.5 hereof, shall include the right to be paid by the corporation
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the expenses incurred in defending any such proceeding in advance of its final disposition. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.
Section 5.2 Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation under Section 5.1 of this Article V or advance of expenses under Section 5.5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within sixty days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such persons costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 5.4 Nonexclusivity of Article V. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise.
Section 5.5 Insurance. The corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V.
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Section 5.6 Expenses. Expenses incurred by any person described in Section 5.1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceedings final disposition upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. Notwithstanding the foregoing, no advance shall be made by the corporation if a determination is reasonably and promptly made (i) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to the proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, that the facts known to the decision making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation.
Section 5.7 Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the board of directors.
Section 5.8 Contract Rights. The provisions of this Article V shall be deemed to be a contract right between the corporation and each director or officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect, and any repeal or modification of this Article V or any such law shall only be prospective and shall not affect the rights under these Bylaws in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any agent of the corporation.
Section 5.9 Merger or Consolidation. For purposes of this Article V, 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, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.
Section 5.10 Savings Clause. If these Bylaws or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each director and officer to the full extent not prohibited by any applicable portion of these Bylaws that shall not have been invalidated, or by any other applicable law
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ARTICLE VI
CERTIFICATES OF STOCK
Section 6.1 Form. 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, the chief executive officer, the president or a vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares owned by such holder in the corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such chairman of the board, chief executive officer, president, vice-president, secretary, or assistant secretary may be facsimiles. 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 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. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holders attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.
Section 6.2 Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. 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, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.
Section 6.3 Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which
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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 sixty nor less than ten days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting.
Section 6.4 Fixing a Record Date for Action by Written Consent. 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 date shall not be more than ten 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, when no prior action by the board of directors is required by statute, 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. Delivery made to the corporations registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.
Section 6.5 Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, 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, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
Section 6.6 Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.
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ARTICLE VII
GENERAL PROVISIONS
Section 7.1 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 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. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.
Section 7.2 Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.
Section 7.3 Contracts. The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.
Section 7.4 Loans. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.
Section 7.5 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors.
Section 7.6 Corporate Seal. The board of directors may provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words Corporate Seal, Delaware. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7.7 Voting Securities Owned By Corporation. Voting securities in any other corporation held by the corporation shall be voted by the chief executive officer, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.
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Section 7.8 Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporations stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such persons interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.
Section 7.9 Section Headings. Section headings in these Bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.
Section 7.10 Inconsistent Provisions. In the event that any provision of these Bylaws is or becomes inconsistent with any provision of the Certificate of Incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these Bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
ARTICLE VIII
AMENDMENTS
These Bylaws may be amended, altered, or repealed and new Bylaws adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the Bylaws has been conferred upon the board of directors shall not divest the stockholders of the same powers.
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Exhibit 3.3
CERTIFICATE OF FORMATION
OF
AMYLIN PHARMACEUTICALS, LLC
This Certificate of Formation is being executed as of August 8, 2012, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101, et seq.
The undersigned, being duly authorized to execute and file this Certificate, does hereby certify as follows:
1. Name. The name of the limited liability company is Amylin Pharmaceuticals, LLC (the Company).
2. Registered Office and Registered Agent. The Companys registered office in the State of Delaware is located at 2711 Centerville Road, Suite 400, Wilmington, DE 19808, in the County of New Castle. The name and address of the registered agent of the Company for service of process in the state of Delaware are Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808, in the County of New Castle.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Formation as of the day and year first above written.
By: | /s/ Demetrios Kydonieus | |
Name: | Demetrios Kydonieus | |
Title: | Vice President |
Exhibit 3.4
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMYLIN PHARMACEUTICALS, LLC
Dated as of August 8, 2012
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMYLIN PHARMACEUTICALS, LLC
This Limited Liability Company Agreement (this Agreement) of Amylin Pharmaceuticals, LLC is entered into by BMS Holdco, Inc., a Delaware corporation, as sole member (the Managing Member).
The Managing Member hereby forms a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del.C. § 18-101, et seq.), as amended from time to time (the Act), and hereby agrees as follows:
1. Name. The name of the limited liability company formed hereby is Amylin Pharmaceuticals, LLC (the Company).
2. Purpose. The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing.
3. Members. The name and mailing address of the Managing Member is as follows:
Name |
Address | |
BMS Holdco, Inc. | 345 Park Avenue New York, NY 10154 |
4. Powers. The Managing Member of the Company shall manage the Company in accordance with this Agreement. The actions of the Managing Member taken in such capacity and in accordance with this Agreement shall bind the Company.
i. The Managing Member shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company, to make all decisions affecting the business, operations and affairs of the Company and to take all such actions as it deems necessary or appropriate to accomplish the purpose of the Company as set forth herein. Subject to the provisions of this Agreement, the Managing Member shall have general and active management of the business and operations of the Company. In addition, the Managing Member shall have such other powers and duties as may be prescribed by the Managing Member or this Agreement. Such duties may be delegated by the Managing Member to officers, agents or employees of the Company as the Managing Member may deem appropriate from time to time.
ii. The Managing Member may, from time to time, designate one or more persons to be officers of the Company. No officer need be a member of the Company. Any officers so designated will have such authority and perform such duties as the Managing Member may, from time to time, delegate to them. The Managing Member may assign titles to particular officers, including, without limitation, chairman, chief executive officer, president, vice
president, chief operating officer, secretary, assistant secretary, treasurer and assistant treasurer. Each officer will hold office until his or her successor will be duly designated and will qualify or until his or her death or until he or she will resign or will have been removed. Any number of offices may be held by the same person. The salaries or other compensation, if any, of the officers and agents of the Company will be fixed from time to time by the Managing Member or by any officer acting within his or her authority. Any officer may be removed as such, either with or without cause, by the Managing Member whenever in his, her or its judgment the best interests of the Company will be served thereby. Any vacancy occurring in any office of the Company may be filled by the Managing Member. The names of the initial officers of the Company, and their respective titles, are set forth on the attached Schedule 1.
5. Tax Elections. The Taxable Year shall be the Fiscal Year. The Managing Member will upon request supply the information necessary to give proper effect to such election.
6. Dissolution. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following (a) the written consent of the Managing Member; or (b) the death, retirement, resignation, expulsion, insolvency, bankruptcy or dissolution of the Managing Member or the occurrence of any other event which terminates the continued membership of a the Managing Member in the Company.
7. Liability of the Members. The Managing Member shall not have any liability for the obligations or liabilities of the Company except to the extent provided in the Act.
8. Indemnification of Members, Officers and Others.
i. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a proceeding), by reason of the fact that he or a person of whom he is the legal representative, is or was a member or officer (or was a former director), of the Company or is or was serving at the request of the Company as a director, officer, employee, fiduciary, or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a member, officer, former director, employee, fiduciary or agent or in any other capacity while serving as a member, officer, former director, employee, fiduciary or agent, shall be indemnified and held harmless by the Company to the fullest extent which it is empowered to do so by the Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment) against all expense, liability and loss (including attorneys fees actually and reasonably incurred by such person in connection with such proceeding and such indemnification shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in Section 8(ii) hereof, the Company shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person or any proceeding by such person against the Company or its members, officers, former directors, employees or other agents only if (i) such proceeding was authorized by the Managing Member of the Company, (ii) such indemnification is provided by
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the Company, in its sole discretion, pursuant to the powers vested in the Company under the Act or (iii) such indemnification is expressly required to be made by law. The right to indemnification conferred in this Section 8 shall be a contract right and, subject to Sections 8(ii) and 8(v) hereof, shall include the right to be paid by the Company the expenses incurred in defending any such proceeding in advance of its final disposition. The Company may, by action of its Managing Member, provide indemnification to employees and agents of the Company with the same scope and effect as the foregoing indemnification of members and officers.
ii. Any indemnification of a member, officer or former member, officer or director of the Company under Section 8(i) or advance of expenses under Section 8(v) shall be made promptly, and in any event within 30 days, upon the written request of the member, officer or former member, officer or director. If a determination by the Company that the member, officer or former member, officer or director is entitled to indemnification pursuant to this Section 8 is required, and the Company fails to respond within sixty days to a written request for indemnity, the Company shall be deemed to have approved the request. If the Company denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30 days, the right to indemnification or advances as granted by this Section 9 shall be enforceable by the member or officer in any court of competent jurisdiction. Such persons costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the Company. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the Company) that the claimant has not met the standards of conduct which make it permissible under the Act for the Company to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the Company. Neither the failure of the Company (including its Managing Member, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Act, nor an actual determination by the Company (including its Managing Member, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
iii. For purposes of any determination under this Agreement, the member, officer or former member, officer or director shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, to have had no reasonable cause to believe that his conduct was unlawful, if his action is based on information, opinions, reports and statements, including financial statements and other financial data in each case prepared or presented by: (i) one or more officers or employees of the Company whom the member, officer or former member, officer or director believed to be reliable and competent in the matters presented, (ii) counsel, independent accountants or other persons as to matters which the member, officer or former member, officer or director believed to be within such persons professional competence and (iii) with respect to a former director, a committee of the former board of directors upon which the director did not serve, as to matters within such committees designated authority, which committee the director believes to merit confidence; so long as, in each case, the member,
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officer or former member, officer or director acts without knowledge that would cause such reliance to be unwarranted. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal proceeding, that he had reasonable cause to believe that his conduct was unlawful. The provisions of this Section 8(iii) 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 by the Act.
iv. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section 8 shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Formation, operating agreement, vote of members or otherwise.
v. The Company may purchase and maintain insurance on its own behalf and on behalf of any person who is a member, officer, former director, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the Company would have the power to indemnify such person against such liability under this Section 8.
vi. Expenses incurred by any person described in Section 8(i) in defending a proceeding shall be paid by the Company in advance of such proceedings final disposition upon receipt of an undertaking by or on behalf of the member, officer or former director to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Company. Notwithstanding the foregoing, no advance shall be made by the Company if a determination is reasonably and promptly made (i) by the Managing Member, or (ii) if the Managing Member so directs, by independent legal counsel in a written opinion, that the facts known to the decision making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Company.
vii. Persons who are not covered by the foregoing provisions of this Section 8 and who are or were employees or agents of the Company, or who are or were serving at the request of the Company as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the Managing Member.
viii. The provisions of this Section 8 shall be deemed to be a contract right between the Company and the Managing Member and each officer who serves in any such capacity at any time while this Section 8 and the relevant provisions of the Act or other applicable law are in effect, and any repeal or modification of this Section 8 or any such law shall only be prospective and shall not affect the rights under this Agreement in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any agent of the Company.
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ix. For purposes of this Section 8, references to the Company shall include, in addition to the resulting company, any constituent company (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 members, directors, officers, and employees or agents, so that any person who is or was a member, director, officer, employee or agent of such constituent company, or is or was serving at the request of such constituent company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Section 8 with respect to the resulting or surviving company as he or she would have with respect to such constituent corporation if its separate existence had continued.
x. If this Agreement or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify each member, officer or former member, officer or director to the full extent not prohibited by any applicable portion of this Agreement that shall not have been invalidated, or by any other applicable law.
10. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws.
11. Uncertificated. The Company will remain uncertificated for purposes of Article 8 of the Uniform Commercial Code, and will not take any action to treat the equity interests thereof as securities under or for purposes of Article 8 of the Uniform Commercial Code.
* * * *
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, has duly executed this Limited Liability Company Agreement of Amylin Pharmaceuticals, LLC as of the 8th day of August 2012.
BMS HOLDCO, INC. | ||
By: | /s/ Gary Lewbel | |
Name: | Gary Lewbel | |
Title: | President |
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Schedule 1
Initial Officers
Name |
Title | |
John Celentano | President | |
Jeffrey Galik | Treasurer | |
Katherine Kelly | Secretary | |
P. Joseph Campisi | Vice President | |
Demetrios Kydonieus | Vice President | |
David Bonk | Vice President |
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Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (Supplemental Indenture) dated as of August 8, 2012, between AMYLIN PHARMACEUTICALS, INC., a Delaware corporation (the Company), and THE BANK OF NEW YORK MELLON TRUST COMPANY N.A. (formerly known as The Bank of New York Trust Company, N.A.), a national banking association, as trustee (the Trustee).
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee are parties to that certain Indenture, dated as of June 8, 2007 (the Indenture), pursuant to which the Company issued its 3.00% Convertible Senior Notes due 2014 (the Notes); and
WHEREAS, on June 29, 2012, the Company entered into an Agreement and Plan of Merger (the Merger Agreement) with Bristol-Myers Squibb Company, a Delaware corporation (Parent), and B&R Acquisition Company, a Delaware corporation and a wholly-owned Subsidiary of Parent (Merger Sub); and
WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions therein, Merger Sub will merge with and into the Company (the Merger) and the Company will continue as a wholly-owned Subsidiary of Parent; and
WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions therein, at the effective time of the Merger, each share of Common Stock will be converted into the right to receive $31.00 in cash (the Reference Property), without interest and less any applicable withholding taxes; and
WHEREAS, in connection with the foregoing, Section 8.01(f) and 12.10 of the Indenture provide that the Company shall execute a supplemental indenture providing that each Note shall, without the consent of any Holders of Notes, become convertible by reference only to the amount of Reference Property; and
WHEREAS, all conditions for the execution and delivery of this Supplemental Indenture have been complied with or have been done or performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In consideration of the foregoing and for other good and valuable consideration, receipt of which is hereby acknowledged, the Company and the Trustee agree as follows for the equal and ratable benefit of the Holders of the Notes:
ARTICLE 1
Definitions
Section 1.01. General. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture.
ARTICLE 2
Agreements of Parties
Section 2.01. Daily VWAP and Last Reported Sale Price. The definition of the Last Reported Sale Price with respect to Common Stock in the Indenture is hereby deleted and replaced in its entirety with the following:
Last Reported Sale Price means, with respect to Common Stock, $31.00.
Section 2.02 Conversion of Notes. In accordance with Section 12.10 of the Indenture and the Officers Certificate, dated August 8, 2012, from and after the date of this Supplemental Indenture, the right to convert each $1,000 principal amount of Notes will be changed to a right to convert such Notes by reference to the kind and amount of cash, securities or other property or assets that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such transaction would have owned or been entitled to receive (the Reference Property), which will be cash equal to $507.63 per $1,000 principal amount of Notes based on a Conversion Rate of 16.3752. Accordingly, any reference to a share of Common Stock in the Indenture shall be deemed a reference to a right to receive an amount in cash equal to $31.00, and the provisions of the Indenture, as modified herein, shall continue to apply, mutatis mutandis, to the Holders right to convert the Notes into the Reference Property.
ARTICLE 3
Miscellaneous Provisions
Section 3.01 Effectiveness; Construction. This Supplemental Indenture shall become effective upon its execution and delivery by the Company and the Trustee and as of the date hereof. Upon such effectiveness, the Indenture shall be supplemented in accordance herewith. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore orhereafter authenticated and delivered under the Indenture shall be bound thereby. The Indenture and this Supplemental Indenture shall henceforth be read and construed together.
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Section 3.02 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.
Section 3.03 Trustee Matters. The Trustee accepts the Indenture, as supplemented hereby, and agrees to perform the same upon the terms and conditions set forth therein, as supplemented hereby. The Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided. The recitals contained in this Supplemental Indenture shall be taken as the statements of the Company and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
Section 3.04 No Third-Party Beneficiaries. Nothing in this Supplemental Indenture, express or implied, shall give to any Person, other than the parties to the Indenture, as supplemented hereby, and their successors, and to the Holders of the Notes, any benefit of any legal or equitable right, remedy or claim under the Indenture, as supplemented hereby.
Section 3.05 Severability. In case any provision of this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be impaired thereby.
Section 3.06 Headings. The Article and Section headings of this Supplemental Indenture have been inserted for convenience of reference only and are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 3.07 Successors. All agreements of the Company and the Trustee in this Supplemental Indenture shall bind their respective successors.
Section 3.09 Governing Law. This Supplemental Indenture shall be construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles thereof.
Section 3.10 Counterpart Signatures. This Supplemental Indenture may be signed by the parties hereto in multiple counterparts. Each signed counterpart shall be deemed an original, but all of them together shall represent the same agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
AMYLIN PHARMACEUTICALS, INC. | ||
By: | /s/ Mark G. Foletta | |
Name: Mark G. Foletta | ||
Title: Senior Vice President, Finance and Chief Financial Officer |
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
By: |
| |
Name: | ||
Title: |
[Signature page to First Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
AMYLIN PHARMACEUTICALS, INC. | ||
By: |
| |
Name: Mark G. Foletta | ||
Title: Senior Vice President, Finance and Chief Financial Officer | ||
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
By: | /s/ Melonee Young | |
Name: Melonee Young | ||
Title: Vice President |
[Signature page to First Supplemental Indenture]