Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1 Registration Statement (General Form) HTML 468K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 80K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 157K
4: EX-4.1 Instrument Defining the Rights of Security Holders HTML 25K
5: EX-10.1 Material Contract HTML 75K
6: EX-10.2 Material Contract HTML 101K
7: EX-10.3 Material Contract HTML 45K
8: EX-10.4 Material Contract HTML 101K
9: EX-10.5 Material Contract HTML 85K
10: EX-10.6 Material Contract HTML 33K
EX-3.2 — Articles of Incorporation/Organization or By-Laws
1.1 Place of Meetings.
Meetings of stockholders of Prosper Marketplace, Inc. (the “Company”) shall be held at any place,
within or outside the State of Delaware, determined by the Company’s board of
directors (the “Board”). The Board
may, in its sole discretion, determine that a meeting of stockholders shall not
be held at any place, but may instead be held solely by means of remote
communication as authorized by Section 211(a)(2) of the Delaware General
Corporation Law (the “DGCL”). In
the absence of any such designation or determination, stockholders’ meetings shall
be held at the Company’s principal executive office.
1.2 Annual Meeting.
An annual meeting of stockholders shall be held for the election of directors
at such date and time as may be designated by resolution of the Board from time
to time. Any other proper business may be transacted at the annual meeting. The
Company shall not be required to hold an annual meeting of stockholders, provided that (i) the stockholders are permitted to act
by written consent under the Company’s certificate of incorporation and these
bylaws, (ii) the stockholders take action by written consent to elect
directors and (iii) the stockholders unanimously consent to such action
or, if such consent is less than unanimous, all of the directorships to which
directors could be elected at an annual meeting held at the effective time of
such action are vacant and are filled by such action.
1.3 Special Meeting.
A special meeting of the stockholders may be called at any time by the Board,
Chairperson of the Board, Chief Executive Officer or President (in the absence
of a Chief Executive Officer) or by one or more stockholders holding shares in
the aggregate entitled to cast not less than 10% of the votes at that meeting.
If any person(s) other than the Board calls a special
meeting, the request shall:
(i) be
in writing;
(ii) specify
the time of such meeting and the general nature of the business proposed to be
transacted; and
(iii) be
delivered personally or sent by registered mail or by facsimile transmission to
the Chairperson of the Board, the Chief Executive Officer, the President (in
the absence of a Chief Executive Officer) or the Secretary of the Company.
The officer(s) receiving the request shall cause
notice to be promptly given to the stockholders entitled to vote at such
meeting, in accordance with the provisions of sections 1.4
and 1.5 of these bylaws, that a
meeting will be held at the time requested by the person or persons calling the
meeting. No business may be transacted at such special meeting other than the
business specified in such notice to stockholders. Nothing contained in this
paragraph of this section 1.3
shall be construed as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the Board may be held.
1.4 Notice of Stockholders’ Meetings.
All notices of meetings of stockholders shall be sent or otherwise given in
accordance with either section 1.5
or section 7.1 of these
bylaws not less than 10 or more than 60 days before the date of the meeting to
each stockholder entitled to vote at such meeting. The notice shall specify the
place, if any, date and hour of the meeting, the means of remote communication,
if any, by which stockholders and proxy holders may be deemed to be present in
person and vote at such meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called.
1.5 Manner of Giving Notice; Affidavit
of Notice. Notice of any meeting of stockholders shall be
given:
(i) if
mailed, when deposited in the United States mail, postage prepaid, directed to
the stockholder at his or her address as it appears on the Company’s records;
or
(ii) if
electronically transmitted as provided in section 7.1
of these bylaws.
An affidavit of the Secretary or an Assistant
Secretary of the Company or of the transfer agent or any other agent of the
Company that the notice has been given by mail or by a form of electronic
transmission, as applicable, shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
1.6 Quorum. Except
as otherwise provided by law, the certificate of incorporation or these bylaws,
at each meeting of stockholders the presence in person or by proxy of the
holders of shares of stock having a majority of the votes which could be cast
by the holders of all outstanding shares of stock entitled to vote at the
meeting shall be necessary and sufficient to constitute a quorum. If, however,
such quorum is not present or represented at any meeting of the stockholders,
then either (i) the chairperson of the meeting, or (ii) the
stockholders entitled to vote at the meeting, present in person or represented
by proxy, shall have the power to adjourn the meeting from time to time, in the
manner provided in section 1.7,
until a quorum is present or represented.
1.7 Adjourned Meeting; Notice.
Any meeting of stockholders, annual or special, may adjourn from time to time
to reconvene at the same or some other place, and notice need not be given of
the adjourned meeting if the time, place, if any, thereof, and the means of
remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such adjourned meeting are announced
at the meeting at which the adjournment is taken. At the adjourned meeting, the
Company may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
1.8 Conduct of Business.
Meetings of stockholders shall be presided over by the Chairperson of the
Board, if any, or in his or her absence by the Vice Chairperson of the Board,
if any, or in the absence of the foregoing persons by the Chief Executive
Officer, or in
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the absence of the
foregoing persons by the President, or in the absence of the foregoing persons
by a Vice President, or in the absence of the foregoing persons by a
chairperson designated by the Board, or in the absence of such designation by a
chairperson chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairperson of the meeting may appoint
any person to act as secretary of the meeting. The chairperson of any meeting
of stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
business.
1.9 Voting. The
stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of section 1.11 of these bylaws, subject to Section 217
(relating to voting rights of fiduciaries, pledgors and joint owners of stock)
and Section 218 (relating to voting trusts and other voting agreements) of
the DGCL.
Except as may be otherwise provided in the certificate
of incorporation, each stockholder entitled to vote at any meeting of
stockholders shall be entitled to one vote for each share of capital stock held
by such stockholder which has voting power upon the matter in question. Voting
at meetings of stockholders need not be by written ballot and, unless otherwise
required by law, need not be conducted by inspectors of election unless so
determined by the holders of shares of stock having a majority of the votes
which could be cast by the holders of all outstanding shares of stock entitled
to vote thereon which are present in person or by proxy at such meeting. If
authorized by the Board, the requirement of a written ballot for the election
of directors shall be satisfied by a ballot submitted by electronic
transmission (as defined in section 7.2
of these bylaws), provided that any such electronic
transmission must either set forth or be submitted with information from which
it can be determined that the electronic transmission was authorized by the
stockholder or proxy holder.
At all meetings of stockholders for the election of
directors a plurality of the votes cast shall be sufficient to elect. All other
elections and questions shall, unless otherwise provided by law, the
certificate of incorporation or these bylaws, be decided by the vote of the
holders of shares of stock having a majority of the votes which could be cast
by the holders of all shares of stock entitled to vote thereon which are
present in person or represented by proxy at the meeting.
1.10 Stockholder Action by Written
Consent Without a Meeting. Unless otherwise provided in
the certificate of incorporation, any action required by the DGCL to be taken
at any annual or special meeting of stockholders of a 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,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted.
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 and who, if the action had
been taken at a meeting, would have been entitled to notice of the meeting if
the record date for such meeting had been the date that written consents signed
by a sufficient number of holders to take the action were delivered to the
Company as provided in Section 228 of the DGCL. In the event that the
action which is consented to is such as would have required the filing of a
certificate under any provision
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of the DGCL, if
such action had been voted on by stockholders at a meeting thereof, the
certificate filed under such provision shall state, in lieu of any statement
required by such provision concerning any vote of stockholders, that written
consent has been given in accordance with Section 228 of the DGCL.
1.11 Record Date for Stockholder Notice;
Voting; Giving Consents. In order that the Company may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board and which record date:
(i) in
the case of determination of stockholders entitled to notice of or to vote at
any meeting of stockholders or adjournment thereof, shall, unless otherwise
required by law, not be more than sixty nor less than ten days before the date
of such meeting;
(ii) in
the case of determination of stockholders entitled to express consent to
corporate action in writing without a meeting, shall not be more than ten days
after the date upon which the resolution fixing the record date is adopted by
the Board; and
(iii) in
the case of determination of stockholders for any other action, shall not be
more than sixty days prior to such other action.
If no record date is fixed by the Board:
(i) the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held;
(ii) the
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting when no prior action of the Board
is required by law, 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
Company in accordance with applicable law, or, if prior action by the Board is
required by law, shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action; and
(iii) the
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board adopts the resolution relating
thereto.
A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting, provided that
the Board may fix a new record date for the adjourned meeting.
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1.12 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 such stockholder by proxy authorized by an
instrument in writing or by a transmission permitted by law filed in accordance
with the procedure established for the meeting, but no such proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period. The revocability of a proxy that states on its face that it
is irrevocable shall be governed by the provisions of Section 212 of the
DGCL.
1.13 List of Stockholders Entitled to
Vote. The officer who has charge of the stock ledger of
the Company shall prepare and make, at least 10 days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. The Company shall
not be required to include electronic mail addresses or other electronic
contact information on such list. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting for a period of at
least 10 days prior to the meeting: (i) on a reasonably accessible
electronic network, provided that
the information required to gain access to such list is provided with the
notice of the meeting, or (ii) during ordinary business hours, at the
Company’s principal executive office. In the event that the Company determines
to make the list available on an electronic network, the Company may take
reasonable steps to ensure that such information is available only to
stockholders of the Company. If the meeting is to be held at a place, then the
list shall be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present. If
the meeting is to be held solely by means of remote communication, then the
list shall also be open to the examination of any stockholder during the whole
time of the meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the notice of
the meeting. Such list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
ARTICLE
II — DIRECTORS
2.1 Powers. Subject
to the provisions of the DGCL and any limitations in the certificate of
incorporation or these bylaws relating to action required to be approved by the
stockholders or by the outstanding shares, the business and affairs of the
Company shall be managed and all corporate powers shall be exercised by or
under the direction of the Board.
2.2 Number of Directors.
The number of directors shall be determined from time to time by resolution of
the Board, provided that the Board shall consist of
at least one member. No reduction of the authorized number of directors
shall have the effect of removing any director before that director’s term of
office expires.
2.3 Election, Qualification and Term of
Office of Directors. Except as provided in section 2.4 of these bylaws, directors
shall be elected at each annual meeting of stockholders to hold office until the
next annual meeting. Directors need not be stockholders unless so required by
the
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certificate of
incorporation or these bylaws. The certificate of incorporation or these bylaws
may prescribe other qualifications for directors. Each director, including a
director elected to fill a vacancy, shall hold office until such director’s
successor is elected and qualified or until such director’s earlier death,
resignation or removal.
2.4 Resignation and Vacancies.
Any director may resign at any time upon notice given in writing or by
electronic transmission to the Company. When one or more directors so resigns
and the resignation is effective at a future date, a majority of the directors
then in office, including those who have so resigned, shall have power to fill
such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen
shall hold office as provided in this section in the filling of other
vacancies.
Unless otherwise provided in the certificate of
incorporation or these bylaws:
(i) Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors elected by all of the stockholders having the right to vote
as a single class may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director.
(ii) Whenever
the holders of any class or classes of stock or series thereof are entitled to
elect one or more directors by the provisions of the certificate of
incorporation, vacancies and newly created directorships of such class or
classes or series may be filled by a majority of the directors elected by such
class or classes or series thereof then in office, or by a sole remaining
director so elected.
If at any time, by reason of death or resignation or
other cause, the Company should have no directors in office, then any officer
or any stockholder or an executor, administrator, trustee or guardian of a
stockholder, or other fiduciary entrusted with like responsibility for the
person or estate of a stockholder, may call a special meeting of stockholders
in accordance with the provisions of the certificate of incorporation or these
bylaws, or may apply to the Court of Chancery for a decree summarily ordering
an election as provided in Section 211 of the DGCL.
If, at the time of filling any vacancy or any newly
created directorship, the directors then in office constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase),
then the Court of Chancery may, upon application of any stockholder or
stockholders holding at least 10% of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office as
aforesaid, which election shall be governed by the provisions of
Section 211 of the DGCL as far as applicable.
2.5 Place of Meetings; Meetings by
Telephone. The Board may hold meetings, both regular and
special, either within or outside the State of Delaware.
Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the Board, or any committee
designated by the Board, may participate in a meeting of the Board, or any
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committee,
by means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
2.6 Conduct of Business.
Meetings of the Board shall be presided over by the Chairperson of the Board,
if any, or in his or her absence by the Vice Chairperson of the Board, if any,
or in the absence of the foregoing persons by a chairperson designated by the
Board, or in the absence of such designation by a chairperson chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his or her
absence the chairperson of the meeting may appoint any person to act as
secretary of the meeting.
2.7 Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at
such place as shall from time to time be determined by the Board.
2.8 Special Meetings; Notice.
Special meetings of the Board for any purpose or purposes may be called at any
time by the Chairperson of the Board, the Chief Executive Officer, the
President, the Secretary or any two directors.
Notice of the time and place of special meetings shall
be:
(i) delivered
personally by hand, by courier or by telephone;
(ii) sent
by United States first-class mail, postage prepaid;
(iii) sent
by facsimile; or
(iv) sent
by electronic mail,
directed to each director at that director’s address, telephone number,
facsimile number or electronic mail address, as the case may be, as shown on
the Company’s records.
If the notice is (i) delivered personally by hand, by
courier or by telephone, (ii) sent by facsimile or (iii) sent by
electronic mail, it shall be delivered or sent at least 24 hours before the
time of the holding of the meeting. If the notice is sent by United States mail,
it shall be deposited in the United States mail at least four days before the
time of the holding of the meeting. Any oral notice may be communicated to the
director. The notice need not specify the place of the meeting (if the meeting
is to be held at the Company’s principal executive office) nor the purpose of
the meeting.
2.9 Quorum. At all
meetings of the Board, a majority of the total number of directors shall
constitute a quorum for the transaction of business. The vote of a majority of
the directors present at any meeting at which a quorum is present shall be the
act of the Board, except as may be otherwise specifically provided by statute,
the certificate of incorporation or these bylaws. If a quorum is not present at
any meeting of the Board, then the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present.
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A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of directors, if
any action taken is approved by at least a majority of the required quorum for
that meeting.
2.10 Board Action by Written Consent
Without a Meeting. Unless otherwise restricted by the
certificate of incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the Board, or of any committee thereof, may be
taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing or by electronic transmission and the
writing or writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board or committee. Such filing shall be in
paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
2.11 Fees and Compensation of Directors.
Unless otherwise restricted by the certificate of incorporation or these
bylaws, the Board shall have the authority to fix the compensation of
directors.
2.12 Approval of Loans to Officers.
The Company may lend money to, or guarantee any obligation of, or otherwise
assist any officer or other employee of the Company or of its subsidiary,
including any officer or employee who is a director of the Company or its
subsidiary, whenever, in the judgment of the Board, such loan, guaranty or
assistance may reasonably be expected to benefit the Company. The loan,
guaranty or other assistance may be with or without interest and may be
unsecured, or secured in such manner as the Board shall approve, including,
without limitation, a pledge of shares of stock of the Company.
2.13 Removal of Directors.
Unless otherwise restricted by statute, the certificate of incorporation or
these bylaws, any director or the entire Board may be removed, with or without
cause, by the holders of a majority of the shares then entitled to vote at an
election of directors.
No reduction of the authorized number of directors
shall have the effect of removing any director prior to the expiration of such
director’s term of office.
ARTICLE
III — COMMITTEES
3.1 Committees of Directors.
The Board may designate one or more committees, each committee to consist of
one or more of the directors of the Company. The Board may designate one or
more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the absence
or disqualification of a member of a committee, the member or members 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 to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board or in these bylaws, shall have and may exercise all the
powers and authority of the Board in the management of the business and affairs
of the Company, and may authorize the seal of the Company to be affixed to all
papers that may require it; but no such committee shall have the power or
authority to (i) approve or adopt, or recommend to the stockholders,
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any action or matter expressly
required by the DGCL to be submitted to stockholders for approval, or (ii)
adopt, amend or repeal any bylaw of the Company,
3.2 Committee Minutes.
Each committee shall keep regular minutes of its meetings and report the same
to the Board when required.
3.3 Meetings and Action of Committees.
Meetings and actions of committees shall be governed by, and held and taken in
accordance with, the provisions of:
(i) section 2.5 (Place of Meetings;
Meetings by Telephone);
(ii) section 2.7 (Regular Meetings);
(iii) section 2.8 (Special Meetings;
Notice);
(iv) section 2.9 (Quorum);
(v) section 2.10 (Board Action by Written
Consent Without a Meeting); and
(vi) section 6.10 (Waiver of Notice)
with such changes
in the context of those bylaws as are necessary to substitute the committee and
its members for the Board and its members. However:
(vii) the
time of regular meetings of committees may be determined either by resolution
of the Board or by resolution of the committee;
(viii) special
meetings of committees may also be called by resolution of the Board; and
(ix) notice
of special meetings of committees shall also be given to all alternate members,
who shall have the right to attend all meetings of the committee. The Board may
adopt rules for the government of any committee not inconsistent with the
provisions of these bylaws.
ARTICLE
IV — OFFICERS
4.1 Officers. The
officers of the Company shall be a President and a Secretary. The Company may
also have, at the discretion of the Board, a Chairperson of the Board, a Vice
Chairperson of the Board, a Chief Executive Officer, one or more Vice
Presidents, a Chief Financial Officer, a Treasurer, one or more Assistant
Treasurers, one or more Assistant Secretaries, and any such other officers as
may be appointed in accordance with the provisions of these bylaws. Any number
of offices may be held by the same person.
4.2 Appointment of Officers.
The Board shall appoint the officers of the Company, except such officers as
may be appointed in accordance with the provisions of sections 4.3 and 4.5 of these bylaws, subject to the rights,
if any, of an officer under any contract of employment.
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4.3 Subordinate Officers.
The Board may appoint, or empower the Chief Executive Officer or, in the
absence of a Chief Executive Officer, the President, to appoint, such other
officers and agents as the business of the Company may require. Each of such
officers and agents shall hold office for such period, have such authority, and
perform such duties as are provided in these bylaws or as the Board may from
time to time determine.
4.4 Removal and Resignation of Officers.
Subject to the rights, if any, of an officer under any contract of employment,
any officer may be removed, either with or without cause, by an affirmative
vote of the majority of the Board at any regular or special meeting of the
Board or, except in the case of an officer chosen by the Board, by any officer
upon whom such power of removal may be conferred by the Board.
Any officer may resign at any time by giving written
notice to the Company. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that notice. Unless
otherwise specified in the notice of resignation, the acceptance of the
resignation shall not be necessary to make it effective. Any resignation is
without prejudice to the rights, if any, of the Company under any contract to
which the officer is a party.
4.5 Vacancies in Offices.
Any vacancy occurring in any office of the Company shall be filled by the Board
or as provided in section 4.2.
4.6 Representation of Shares of Other
Corporations. Unless otherwise directed by the Board, the
President or any other person authorized by the Board or the President is
authorized to vote, represent and exercise on behalf of the Company all rights
incident to any and all shares of any other corporation or corporations
standing in the name of the Company. The authority granted herein may be
exercised either by such person directly or by any other person authorized to
do so by proxy or power of attorney duly executed by such person having the
authority.
4.7 Authority and Duties of Officers.
Except as otherwise provided in these bylaws, the officers of the Company shall
have such powers and duties in the management of the Company as may be
designated from time to time by the Board and, to the extent not so provided,
as generally pertain to their respective offices, subject to the control of the
Board.
ARTICLE
V — RECORDS AND REPORTS
5.1 Maintenance and Inspection of
Records. The Company shall, either at its principal
executive office or at such place or places as designated by the Board, keep a
record of its stockholders listing their names and addresses and the number and
class of shares held by each stockholder, a copy of these bylaws as amended to
date, accounting books, and other 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 Company’s 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 a purpose reasonably
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related to such
person’s interest as a stockholder. In every instance where an attorney or
other agent is the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing that
authorizes the attorney or other agent so to act on behalf of the stockholder.
The demand under oath shall be directed to the Company at its registered office
in Delaware or at its principal executive office.
5.2 Inspection by Directors.
Any director shall have the right to examine the Company’s stock ledger, a list
of its stockholders, and its other books and records for a purpose reasonably
related to his or her position as a director. The Court of Chancery is hereby
vested with the exclusive jurisdiction to determine whether a director is
entitled to the inspection sought. The Court may summarily order the Company to
permit the director to inspect any and all books and records, the stock ledger,
and the stock list and to make copies or extracts therefrom. The Court may, in
its discretion, prescribe any limitations or conditions with reference to the
inspection, or award such other and further relief as the Court may deem just
and proper.
5.3 Annual Report.
The Company shall cause an annual report to be sent to the stockholders of the
Company to the extent required by applicable law. If and so long as there are
fewer than 100 holders of record of the Company’s shares, the requirement of
sending of an annual report to the stockholders of the Company is expressly
waived (to the extent permitted under applicable law).
ARTICLE
VI — GENERAL MATTERS
6.1 Stock Certificates; Partly Paid
Shares. The shares of the Company shall be represented by
certificates, provided that the Board may
provide by resolution or resolutions that some or all of any or all classes or
series of its stock shall be uncertificated shares. Any such resolution shall
not apply to shares represented by a certificate until such certificate is
surrendered to the Company. Notwithstanding the adoption of such a resolution
by the Board, every holder of stock represented by certificates and upon
request every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of the Company by the Chairperson of the
Board or Vice Chairperson of the Board, or the President or a Vice President,
and by the Treasureror an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the Company
representing the number of shares registered in certificate form. Any or all of
the signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate has ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Company
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
The Company may issue the whole or any part of its
shares as partly paid and subject to call for the remainder of the
consideration to be paid therefor. Upon the face or back of each stock
certificate issued to represent any such partly paid shares, upon the books and
records of the Company in the case of uncertificated partly paid shares, the
total amount of the consideration to be paid therefor and the amount paid
thereon shall be stated. Upon the declaration of any dividend on fully paid
shares, the Company shall declare a dividend upon partly paid shares of the
same class, but only upon the basis of the percentage of the consideration
actually paid thereon.
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6.2 Special Designation on Certificates.
If the Company is authorized to issue more than one class of stock or more than
one series of any class, then the powers, the designations, the preferences,
and the relative, participating, optional or other special rights of each class
of stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights shall be set forth in full or summarized on
the face or back of the certificate that the Company shall issue to represent
such class or series of stock; provided
that, except as otherwise provided in Section 202 of the DGCL, in lieu of
the foregoing requirements there may be set forth on the face or back of the
certificate that the Company shall issue to represent such class or series of
stock a statement that the Company will furnish without charge to each
stockholder who so requests the powers, the designations, the preferences, and
the relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
6.3 Lost Certificates.
Except as provided in this section 6.3,
no new certificates for shares shall be issued to replace a previously issued
certificate unless the latter is surrendered to the Company and cancelled at
the same time. The Company may issue a new certificate of stock or
uncertificated shares in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the Company may require the
owner of the lost, stolen or destroyed certificate, or such owner’s legal
representative, to give the Company a bond sufficient to indemnify it against
any claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate or
uncertificated shares.
6.4 Construction; Definitions.
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the DGCL shall govern the construction of
these bylaws. Without limiting the generality of this provision, the singular
number includes the plural, the plural number includes the singular, and the
term “person” includes both a corporation and a natural person.
6.5 Dividends. The
Board, subject to any restrictions contained in either (i) the DGCL, or
(ii) the certificate of incorporation, may declare and pay dividends upon
the shares of its capital stock. Dividends may be paid in cash, in property, or
in shares of the Company’s capital stock.
The Board may set apart out of any of the funds of the
Company available for dividends a reserve or reserves for any proper purpose
and may abolish any such reserve. Such purposes shall include but not be
limited to equalizing dividends, repairing or maintaining any property of the
Company, and meeting contingencies.
6.6 Fiscal Year.
The fiscal year of the Company shall be fixed by resolution of the Board and
may be changed by the Board.
6.7 Seal. The
Company may adopt a corporate seal, which shall be in such form as may be
approved from time to time by the Board. The Company may use the corporate seal
by causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
6.8 Stock Transfer Agreements.
The Company shall have power to enter into and perform any agreement with any
number of stockholders of any one or more classes of stock of the Company to
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restrict the transfer of
shares of stock of the Company of any one or more classes owned by such
stockholders in any manner not prohibited by the DGCL.
(i) shall
be entitled to recognize the exclusive right of a person registered on its
books as the owner of shares to receive dividends and to vote as such owner;
(ii) shall
be entitled to hold liable for calls and assessments the person registered on
its books as the owner of shares; and
(iii) shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of another person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
6.10 Waiver of Notice.
Whenever notice is required to be given under any provision of the DGCL, the
certificate of incorporation or these bylaws, a written waiver, signed by the
person entitled to notice, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice or any waiver by electronic
transmission unless so required by the certificate of incorporation or these
bylaws.
ARTICLE
VII — NOTICE BY ELECTRONIC TRANSMISSION
7.1 Notice by Electronic Transmission.
Without limiting the manner by which notice otherwise may be given effectively
to stockholders pursuant to the DGCL, the certificate of incorporation or these
bylaws, any notice to stockholders given by the Company under any provision of
the DGCL, the certificate of incorporation or these bylaws shall be effective
if given by a form of electronic transmission consented to by the stockholder
to whom the notice is given. Any such consent shall be revocable by the
stockholder by written notice to the Company. Any such consent shall be deemed
revoked if:
(i) the
Company is unable to deliver by electronic transmission two consecutive notices
given by the Company in accordance with such consent; and
(ii) such
inability becomes known to the Secretary or an Assistant Secretary of the
Company or to the transfer agent, or other person responsible for the giving of
notice.
However, the inadvertent failure to treat such inability as a
revocation shall not invalidate any meeting or other action.
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Any notice given pursuant to the preceding paragraph
shall be deemed given:
(i) if
by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice;
(ii) if
by electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice;
(iii) if
by a posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (A) such posting
and (B) the giving of such separate notice; and
(iv) if
by any other form of electronic transmission, when directed to the stockholder.
An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent or other agent of the Company that the
notice has been given by a form of electronic transmission shall, in the
absence of fraud, be prima facie
evidence of the facts stated therein.
7.2 Definition of Electronic
Transmission. An “electronic transmission” means any form
of communication, not directly involving the physical transmission of paper,
that creates a record that may be retained, retrieved, and reviewed by a
recipient thereof, and that may be directly reproduced in paper form by such a
recipient through an automated process.
7.3 Inapplicability.
Notice by a form of electronic transmission shall not apply to Sections 164,
296, 311, 312 or 324 of the DGCL.
ARTICLE
VIII — INDEMNIFICATION
8.1 Indemnification of Directors and
Officers. The Company shall indemnify and hold harmless,
to the fullest extent permitted by the DGCL as it presently exists or may
hereafter be amended, any director or officer of the Company who was or is made
or is threatened to be made a party or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
“Proceeding”) by reason of the fact that
he or she, or a person for whom he or she is the legal representative, is or
was a director, officer, employee or agent of the Company or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust, enterprise or
non-profit entity, including service with respect to employee benefit plans,
against all liability and loss suffered and expenses reasonably incurred by
such person in connection with any such Proceeding. The Company shall be
required to indemnify a person in connection with a Proceeding initiated by
such person only if the Proceeding was authorized by the Board.
8.2 Indemnification of Others.
The Company shall have the power to indemnify and hold harmless, to the extent
permitted by applicable law as it presently exists or may hereafter be amended,
any employee or agent of the Company who was or is made or is threatened to be
made a party or is
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otherwise involved in any
Proceeding by reason of the fact that he or she, or a person for whom he or she
is the legal representative, is or was an employee or agent of the Company or
is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or non-profit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person in connection with any such Proceeding.
8.3 Prepayment of Expenses.
The Company shall pay the expenses incurred by any officer or director of the
Company, and may pay the expenses incurred by any employee or agent of the
Company, in defending any Proceeding in advance of its final disposition; provided that the payment of expenses incurred by a person
in advance of the final disposition of the Proceeding shall be made only upon
receipt of an undertaking by the person to repay all amounts advanced if it
should be ultimately determined that the person is not entitled to be
indemnified under this Article VIII
or otherwise.
8.4 Determination; Claim.
If a claim for indemnification or payment of expenses under this Article VIII is not paid in full
within sixty days after a written claim therefor has been received by the
Company the claimant may file suit to recover the unpaid amount of such claim
and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the Company shall have
the burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
8.5 Non-Exclusivity of Rights.
The rights conferred on any person by this Article VIII
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the certificate of
incorporation, these bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
8.6 Insurance. The
Company may purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Company, or is or was serving
at the request of the Company 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, or arising out of his or her status as such, whether or not
the Company would have the power to indemnify him or her against such liability
under the provisions of the DGCL.
8.7 Other Indemnification.
The Company’s obligation, if any, to indemnify any person who was or is serving
at its request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or non-profit entity shall be
reduced by any amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust, enterprise or non-profit
enterprise.
8.8 Amendment or Repeal.
Any repeal or modification of the foregoing provisions of this Article VIII shall not adversely
affect any right or protection hereunder of any person in respect of any act or
omission occurring prior to the time of such repeal or modification.
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ARTICLE
IX — AMENDMENTS
These bylaws may be adopted, amended or repealed by
the stockholders entitled to vote. However, the Company may, in its certificate
of incorporation, confer the power to adopt, amend or repeal bylaws upon the
directors. The fact that such power has been so conferred upon the directors
shall not divest the stockholders of the power, nor limit their power to adopt,
amend or repeal bylaws.
