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 1.38M
18: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 9K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 106K
3: EX-3.3 Articles of Incorporation/Organization or By-Laws HTML 150K
4: EX-4.2 Instrument Defining the Rights of Security Holders HTML 200K
5: EX-4.3 Instrument Defining the Rights of Security Holders HTML 76K
6: EX-4.4 Instrument Defining the Rights of Security Holders HTML 73K
7: EX-4.5 Instrument Defining the Rights of Security Holders HTML 81K
8: EX-4.6 Instrument Defining the Rights of Security Holders HTML 59K
11: EX-10.11 Material Contract HTML 52K
12: EX-10.12 Material Contract HTML 223K
13: EX-10.13 Material Contract HTML 462K
14: EX-10.17 Material Contract HTML 115K
15: EX-10.18 Material Contract HTML 53K
9: EX-10.2 Material Contract HTML 142K
10: EX-10.3 Material Contract HTML 292K
16: EX-21.1 Subsidiaries HTML 8K
17: EX-23.2 Consent of Experts or Counsel HTML 9K
‘EX-3.3’ — Articles of Incorporation/Organization or By-Laws
1.1 Registered Office.
The registered office of the corporation shall be fixed in the certificate of
incorporation of the corporation.
1.2 Other Offices.
The board of directors may at any time establish branch or subordinate offices
at any place or places where the corporation is qualified to do
business.
ARTICLE
II
MEETINGS OF STOCKHOLDERS
2.1 Place of Meetings.
Meetings of stockholders shall be held at any place within or outside the State
of Delaware designated by the board of directors. In the absence of
any such designation, stockholders’ meetings shall be held at the principal
executive office of the corporation.
2.2 Annual Meeting.
The annual meeting of stockholders shall be held each year on a date and at a
time designated by the board of directors. In the absence of such
designation, the annual meeting of stockholders shall be held on the first
Thursday in July in each year at 10:00 a.m. However, if such day
falls on a legal holiday, then the meeting shall be held at the same time and
place on the next succeeding full business day. At the meeting,
directors shall be elected, and any other proper business may be
transacted.
2.3 Special Meeting. A
special meeting of the stockholders may be called at any time by the board of
directors, the chairman of the board, the vice chairman of the board, or by the
president, or by one or more stockholders holding shares in the aggregate
entitled to cast not less than ten percent (10%) of the votes of all shares of
stock owned by stockholders entitled to vote at that meeting.
If a special meeting is called by any
person or persons other than the board of directors, the chairman of the board,
the vice chairman of the board or the president, then the request shall be in
writing, specifying the time of such meeting and the general nature of the
business proposed to be transacted, and shall be delivered personally or sent by
registered mail or by telegraphic or other facsimile transmission to the
chairman of the board, the vice chairman of the board, the president, any vice
president or the secretary of the corporation. The officer receiving
the request shall cause notice to be promptly given to the stockholders entitled
to vote, in accordance with the provisions of Sections 2.4 and 2.6 of these
bylaws, that a meeting will be held at the time requested by the person or
persons calling the meeting, so long as that time is not less than ten (10) nor
more than sixty (60) days after the receipt of the request. If the
notice is not given within twenty (20) days after receipt of the request, then
the person or persons requesting the meeting may give the
notice. Nothing contained in this paragraph of this Section 2.3 shall
be construed as limiting, fixing or affecting the time when a meeting of
stockholders called by action of the board of directors may be
held.
2.4 Notice of Stockholders’ Meetings.
All notices of meetings of stockholders shall be sent or otherwise given in
accordance with Section 2.6 of these bylaws not less than ten (10) nor more
than sixty (60) days before the date of the meeting. The notice shall
specify the place, date and hour of the meeting and (i) in the case of a
special meeting, the purpose or purposes for which the meeting is called (no
business other than that specified in the notice may be transacted) or
(ii) in the case of the annual meeting, those matters which the board of
directors, at the time of giving the notice, intends to present for action by
the stockholders (but any proper matter may be presented at the meeting for such
action). The notice of any meeting at which directors are to be
elected shall include the name of any nominee or nominees who, at the time of
the notice, the board intends to present for election.
2.5 Advance Notice of Stockholder
Nominees and Stockholder Business.
To be properly brought before an annual meeting or special meeting, nominations
for the election of directors or other business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the board of directors, (ii) otherwise properly brought before the meeting by or
at the direction of the board of directors or (iii) otherwise properly brought
before the meeting by a stockholder. For such nominations or other
business to be considered properly brought before the meeting by a stockholder,
such stockholder must have given timely notice and in proper form of his or her
intent to bring such business before such meeting in accordance with
Section 3.18 of these bylaws.
2.6 Manner of Giving Notice; Affidavit of Notice.
Written notice of any meeting of stockholders shall be given either (i)
personally or (ii) by private courier service or (iii) by United States class
mail or (iv) by telegraphic or other written communication. Notices
not personally delivered shall be sent postage prepaid and shall be addressed to
the stockholder at the address of that stockholder appearing on the books of the
corporation or given by the stockholder to the corporation for the purpose
of notice. Notice shall be deemed to have been given at such time as
it is delivered personally or deposited in the mail or sent by telegram or other
means of written communication.
An affidavit of the mailing or other
means of giving any notice of any stockholders’ meeting, executed by the
secretary, assistant secretary or any transfer agent of the corporation giving
the notice, shall be prima facie evidence of the giving of such
notice.
2.7 Quorum.
The holders of a majority of the shares entitled to vote, present in person or
represented by proxy, shall constitute a quorum for the transaction of business
at all meetings of the stockholders, except as otherwise provided by
statute or by the certificate of incorporation. If, however, such
quorum is not present or represented at any meeting of the stockholders, then
either (i) the chairman of the meeting or (ii) the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have power to adjourn
the meeting in accordance with Section 2.8 of these bylaws.
When a quorum is present at any
meeting, the affirmative vote of holders of a majority of the stock having
voting power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of the laws of the State of Delaware or of the certificate of
incorporation or these bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of the
question.
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The stockholders present at a duly
called or held meeting at which a quorum is initially present may continue
to transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken is approved by a
majority of the shares required to constitute a quorum.
2.8 Adjourned Meeting; Notice.
When any meeting of stockholders, either annual or special, is adjourned to
another time or place, unless these bylaws otherwise require, notice need not be
given of the adjourned meeting if the time and place are announced at the
meeting at which the adjournment is taken. At any 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 (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.
2.9 Voting.
The stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of Section 2.11 of these
bylaws, subject to the provisions of Sections 217 and 218 of the General
Corporation Law of Delaware (relating to voting rights of fiduciaries, pledgor
and joint owners, and to voting trusts and other voting
arrangements).
Except as otherwise provided in the
certificate of incorporation or these bylaws, each stockholder shall be
entitled to one vote for each share of capital stock held by such
stockholder.
2.10 Stockholder Action by Written
Consent Without a Meeting.
Any action required or permitted to be taken at any annual or special meeting of
stockholders may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing setting forth the action 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. Such consents shall be delivered to the corporation by
delivery to it 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 a corporation’s registered office shall be
by hand or by certified or registered mail, return receipt
requested.
2.11 Record Date for Stockholder Notice;
Voting.
For purposes of determining the stockholders entitled to notice of any meeting
or to vote thereat or entitled to give consent to a corporate action without a
meeting, the board of directors may fix, in advance, a record date, which
shall not precede the date upon which the resolution fixing the record date is
adopted by the board of directors and which shall not be more than
sixty (60) days nor less than ten (10) days before the date of any such
meeting, and in such event only stockholders of record on the date so fixed
are entitled to notice and to vote, notwithstanding any transfer of any
shares on the books of the corporation after the record date.
If the board of directors does not so
fix a record date, 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 business day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the business 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 unless the board of directors fixes a new
record date for the adjourned meeting, but the board of directors shall fix a
new record date if the meeting is adjourned for more than thirty (30) days from
the date set for the original meeting.
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The record date for any other purpose
shall be as provided in Section 8.1 of these bylaws.
2.12 Proxies.
Every person entitled to vote for directors, or on any other matter, shall have
the right to do so either in person or by one or more agents authorized by a
written proxy signed by the person and filed with the secretary of the
corporation, but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period. A
proxy shall be deemed signed if the stockholder’s name is placed on the proxy
(whether by manual signature, typewriting, telegraphic transmission,
telefacsimile or otherwise) by the stockholder or the stockholder’s
attorney-in-fact. The revocability of a proxy that states on its face
that it is irrevocable shall be governed by the provisions of Section 212(e) of
the General Corporation Law of Delaware.
2.13 Organization.
The president, or in the absence of the president, the chairman of the board, or
in the absence of the chairman of the board, the vice chairman of the board, or
in the absence of the vice chairman of the board, any vice president of the
corporation, shall call the meeting of the stockholders to order, and shall act
as chairman of the meeting. In the absence of the president, the
chairman of the board, the vice chairman of the board, and all of the vice
presidents, the stockholders shall appoint a chairman for such
meeting. The chairman of any meeting of stockholders shall
determine the order of business and the procedures at the meeting,
including such matters as the regulation of the manner of voting and the conduct
of business. The secretary of the corporation shall act as secretary
of all meetings of the stockholders, but in the absence of the secretary at any
meeting of the stockholders, the chairman of the meeting may appoint any person
to act as secretary of the meeting.
2.14 List of Stockholders Entitled to
Vote.
The officer who has charge of the stock ledger of the corporation shall prepare
and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (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.
ARTICLE
III
DIRECTORS
3.1 Powers.
Subject to the provisions of the General Corporation Law of Delaware and to 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 corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the board of
directors.
3.2 Number of Directors.
The number of directors of the corporation shall not be less than 1 nor more
than 3. The number of directors may be changed by an amendment to
this bylaw, duly adopted by the board of directors or by the stockholders, or by
a duly adopted amendment to the certificate of incorporation.
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3.3 Election and Term of Office of Directors.
Except as provided in Section 3.4 of these bylaws, directors shall be
elected at each annual meeting of stockholders to hold office until the next
annual meeting. Each director, including a director elected or appointed to fill
a vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
3.4 Resignation and
Vacancies.
Any director may resign effective on giving written notice to the chairman of
the board, the vice chairman of the board, the president, the secretary or the
board of directors, unless the notice specifies a later time for that
resignation to become effective. If the resignation of a director is
effective at a future time, the board of directors may elect a successor to take
office when the resignation becomes effective.
Vacancies in the board of directors may
be filled by a majority of the remaining directors, even if less than a quorum,
or by a sole remaining director; however, a vacancy created by the removal of a
director by the vote of the stockholders or by court order may be filled only by
the affirmative vote of a majority of the shares represented and voting at a
duly held meeting at which a quorum is present (which shares voting
affirmatively also constitute a majority of the required
quorum). Each director so elected shall hold office until the next
annual meeting of the stockholders and until a successor has been elected and
qualified.
(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 corporation 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
General Corporation Law of Delaware.
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 ten (10) percent 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 General Corporation Law of Delaware as far as
applicable.
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3.5 Removal of
Directors.
Unless otherwise restricted by statute, by the certificate of incorporation or
by these bylaws, any director or the entire board of directors 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.
3.6 Place of Meetings; Meetings by Telephone.
Regular meetings of the board of directors may be held at any place within
or outside the State of Delaware that has been designated from time to time by
resolution of the board. In the absence of such a designation,
regular meetings shall be held at the principal executive office of the
corporation. Special meetings of the board may be held at any place
within or outside the State of Delaware that has been designated in the notice
of the meeting or, if not stated in the notice or if there is no notice, at the
principal executive office of the corporation.
Any meeting of the board, regular or
special, may be held by conference telephone or similar communication equipment,
so long as all directors participating in the meeting can hear one another; and
all such directors shall be deemed to be present in person at the
meeting.
3.7 First Meetings.
The first meeting of each newly elected board of directors shall be held at such
time and place as shall be fixed by the vote of the stockholders at the annual
meeting. In the event of the failure of the stockholders to fix the
time or place of such first meeting of the newly elected board of directors, or
in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of
the board of directors, or as shall be specified in a written waiver signed by
all of the directors.
3.8 Regular Meetings.
Regular meetings of the board of directors may be held without notice if the
times of such meetings are fixed by the board of directors. If any
regular meeting day shall fall on a legal holiday, then the meeting shall be
held at the same time and place on the next succeeding full business
day.
3.9 Special Meetings;
Notice.
Special meetings of the board of directors for any purpose or purposes may be
called at any time by the chairman of the board, the vice chairman of the board,
the president, any vice president, the secretary or any two
directors.
Notice of the time and place of special
meetings shall be delivered personally or by telephone to each director or
sent by first-class mail, telecopy or telegram, charges prepaid, addressed
to each director at that director’s address as it is shown on the records of the
corporation. If the notice is mailed, it shall be deposited in the
United States mail at least four (4) days before the time of the holding of the
meeting. If the notice is delivered personally or by telephone,
telecopy or telegram, it shall be delivered personally or by telephone or to the
telegraph company at least forty-eight (48) hours before the time of the holding
of the meeting. Any oral notice given personally or by telephone may
be communicated either to the director or to a person at the office of the
director who the person giving the notice has reason to believe will promptly
communicate it to the director. The notice need not specify the
purpose or the place of the meeting, if the meeting is to be held at the
principal executive office of the corporation.
3.10 Quorum.
Except to adjourn a meeting of the board as provided in Section 3.12 of these
bylaws, a majority of the directors shall constitute a quorum for the
transaction of business, unless such number of directors is one (1) in which
event a quorum shall consist of one (1) director. Every act or
decision done or made by a majority of the directors present at a duly held
meeting at which a quorum is present shall be regarded as the act of the board
of directors, subject to the provisions of the certificate of incorporation and
applicable law.
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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 quorum for that meeting.
3.11 Waiver of Notice.
Notice of a meeting need not be given to any director (i) who signs a
waiver of notice, whether before or after the meeting, or (ii) who attends
the meeting other than for the express purpose of objecting at the beginning of
the meeting of the transaction of any business because the meeting is not
lawfully called or convened. All such waivers, consents and approvals
shall be filed with the corporate records or made part of the minutes of the
meeting. A waiver of notice need not specify the purpose of any regular or
special meeting of the board.
3.12 Adjournment. A
majority of the directors present, whether or not constituting a quorum,
may adjourn any meeting of the board to another time and place.
3.13 Notice of
Adjournment.
Notice of the time and place of holding an adjourned meeting of the board need
not be given unless the meeting is adjourned for more than twenty-four (24)
hours. If the meeting is adjourned for more than twenty-four (24)
hours, then notice of the time and place of the adjourned meeting shall be given
before the adjourned meeting takes place, in the manner specified in
Section 3.9 of these bylaws, to the directors who were not present at the
time of the adjournment.
3.14 Board Action by Written Consent
Without a Meeting.
Any action required or permitted to be taken by the board of directors may be
taken without a meeting, provided that all members of the board individually or
collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a unanimous vote of the
board of directors. Such written consent and any counterparts thereof shall be
filed with the minutes of the proceedings of the board of
directors.
3.15 Fees and Compensation of Directors.
Directors and members of committees may receive such compensation, if any, for
their services and such reimbursement of expenses as may be fixed or determined
by resolution of the board of directors. This Section 3.15 shall
not be construed to preclude any director from serving the corporation in any
other capacity as an officer, agent, employee or otherwise and receiving
compensation for those services.
3.16 Approval of Loans to
Officers.
The corporation may lend money or property to, or guarantee any obligation of,
or otherwise assist any officer or other employee of the corporation or its
parent or any subsidiary, whether or not a director of the corporation or its
parent or any 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 contained in this section shall
be deemed to deny, limit or restrict the powers of guaranty or warranty of the
corporation at common law or under any statute.
3.17 Sole Director Provided by
Certificate of Incorporation.
In the event only one director is required by these bylaws or the certificate of
incorporation, then any reference herein to notices, waivers, consents, meetings
or other actions by a majority or quorum of the directors shall be deemed to
refer to such notice, waiver, etc., by such sole director, who shall have all
the rights and duties and shall be entitled to exercise all of the powers and
shall assume all the responsibilities otherwise herein described as given to the
board of directors.
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3.18 Nomination of Directors; Stockholder
Business at Annual Meetings.
Subject to the rights of holders of any class or series of stock having a
preference over the common stock as to dividends or upon liquidation,
nominations for the election of directors may be made by the board of directors
or any nominating committee appointed by the board of directors or by any
stockholder entitled to vote in the election of directors
generally. However, a stockholder generally entitled to vote in the
election of directors may nominate one or more persons for election as directors
at a meeting only if written notice of such stockholder’s intent to make such
nomination or nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the secretary of the corporation not
later than (i) with respect to an election to be held at an annual meeting
of stockholders, sixty (60) days in advance of such meeting and (ii) with
respect to an election to be held at a special meeting of stockholders for the
election of directors, the close of business on the seventh day following the
date on which notice of such meeting is first given to
stockholders. Each such notice shall set forth the following
information: (a) the name and address of the stockholder who
intends to make the nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of record of stock of
the corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
stockholder, each nominee or any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by the
stockholder; (d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the board of directors
of the corporation; and (e) the consent of each nominee to serve as a director
of the corporation if so elected. At the request of the board
of directors any person nominated by the board of directors for election as a
director shall furnish to the secretary of the corporation that information
required to be set forth in a stockholder’s notice of nomination which pertains
to the nominee. No person shall be eligible for election as a
director of the corporation unless nominated in accordance with the procedures
set forth herein. A majority of the board of directors may reject any
nomination by a stockholder not timely made or otherwise not in accordance with
the terms of this Section 3.18. If a majority of the board of
directors reasonably determines that the information provided in a stockholder’s
notice does not satisfy the informational requirements of this Section 3.18 in
any material respect, the secretary of the corporation shall promptly notify
such stockholder of the deficiency in writing. The stockholder shall
have an opportunity to cure the deficiency by providing additional information
to the secretary within such period of time, not to exceed ten (10) days from
the date such deficiency notice is given to the stockholder, as a majority of
the board of directors shall reasonably determine. If the deficiency
is not cured within such period, or if a majority of the board of directors
reasonably determines that the additional information provided by the
stockholder, together with the information previously provided, does not satisfy
the requirements of this Section 3.18 in any material respect, then a majority
of the board of directors may reject such stockholder’s
nomination. The secretary of the corporation shall notify a
stockholder in writing whether the stockholder’s nomination has been made in
accordance with the time and information requirements of this Section
3.18.
At an annual meeting of the
stockholders, only such business shall be conducted as shall have been brought
before the meeting (i) by or at the direction of the chairman of the meeting or
(ii) by any stockholder of the corporation who complies with the notice
procedures set forth in this Section 3.18. For business to be
properly brought before an annual meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the secretary of the
corporation. To be timely, a stockholder’s notice must be delivered
to or mailed and received at the principal executive offices of the corporation
not less than sixty (60) days prior to the meeting; provided, however, that in
the event that less than seventy (70) days notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be received not later than the close of business
on the tenth day following the earlier of the day on which such notice of the
date of the annual meeting was mailed or such public disclosure was
made. A stockholder’s notice to the secretary shall set forth as to
each matter the stockholder proposes to bring before the annual meeting the
following information: (a) a brief description of the business desired to
be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (b) the name and address, as they appear on the
corporation’s books, of the stockholder proposing such business, (c) the
class and number of shares of the corporation which are beneficially owned by
the stockholder and (d) any material direct or indirect interest, financial or
otherwise of the stockholder or its affiliates or associates in such
business. The board of directors may reject any stockholder proposal
not timely made in accordance with this Section 3.18. If the board of
directors determines that the information provided in a stockholder’s notice
does not satisfy the informational requirements hereof, the secretary of the
corporation shall promptly notify such stockholder of the deficiency in the
notice. The stockholder shall then have an opportunity to cure the
deficiency by providing additional information to the secretary within such
period of time, not to exceed ten (10) days from the date such deficiency notice
is given to the stockholder, as the board of directors shall
determine. If the deficiency is not cured within such period, or if
the board of directors determines that the additional information provided by
the stockholder, together with the information previously provided, does not
satisfy the requirements of this Section 3.18, then the board of directors may
reject such stockholder’s proposal. The secretary of the corporation
shall notify a stockholder in writing whether the stockholder’s proposal has
been made in accordance with the time and information requirements
hereof.
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This provision shall not prevent the
consideration and approval or disapproval at an annual meeting of reports of
officers, directors and committees of the board of directors, but in connection
therewith no new business shall be acted upon at any such meeting unless stated,
filed and received as herein provided. Notwithstanding anything in
these bylaws to the contrary, no business shall be conducted at an annual
meeting except in accordance with procedures set forth in this
Section 3.18.
ARTICLE
IV
COMMITTEES
4.1 Committees of
Directors.
The board of directors may designate one (1) or more committees, each consisting
of one or more directors, to serve at the pleasure of the board. The
board may designate one (1) or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The appointment of members or alternate members of a
committee requires the vote of a majority of the authorized number of
directors. Any committee, to the extent provided in the resolution of
the board, shall have and may exercise all the powers and authority of the
board, but no such committee shall have the power and authority to
(i) approve or adopt or recommend to the stockholders any action or matter
that requires the approval of the stockholders or (ii) adopt, amend or
repeal any bylaw of the corporation.
4.2 Meetings and Action of Committees.
Meetings and actions of committees shall be governed by, and held and taken in
accordance with, the following provisions of Article III of these bylaws:
Section 3.6 (place of meetings; meetings by telephone),
Section 3.8 (regular meetings), Section 3.9 (special meetings;
notice), Section 3.10 (quorum), Section 3.11 (waiver of notice),
Section 3.12 (adjournment), Section 3.13 (notice of adjournment)
and Section 3.14 (board action by written consent without meeting), with
such changes in the context of those bylaws as are necessary to substitute the
committee and its members for the board of directors and its members;
provided, however, that the time of regular meetings of committees may be
determined either by resolution of the board of directors or by resolution of
the committee, that special meetings of committees may also be called by
resolution of the board of directors, and that 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 of
directors may adopt rules for the government of any committee not inconsistent
with the provisions of these bylaws.
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4.3 Committee Minutes.
Each committee shall keep regular minutes of its meetings and report the same to
the board of directors when required.
ARTICLE
V
OFFICERS
5.1 Officers.
The corporate officers of the corporation shall be a president, a secretary
and a chief financial officer. The corporation may also have, at the
discretion of the board of directors, a chairman of the board, a vice chairman
of the board, one or more vice presidents (however denominated), one or more
assistant secretaries, one or more assistant treasurers, and such other officers
as may be appointed in accordance with the provisions of Section 5.3 of
these bylaws. Any number of offices may be held by the same
person.
In addition to the Corporate Officers
of the Company described above, there may also be such Administrative Officers
of the corporation as may be designated and appointed from time to time by the
president of the corporation in accordance with the provisions of Section 5.13
of these bylaws.
5.2 Election of Officers.
The Corporate Officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Section 5.3 or
Section 5.5 of these bylaws, shall be chosen by the board of directors,
subject to the rights, if any, of an officer under any contract of employment,
and shall hold their respective offices for such terms as the board of directors
may from time to time determine.
5.3 Subordinate Officers.
The board of directors may appoint, or may empower the president to appoint,
such other Corporate Officers as the business of the corporation may require,
each of whom shall hold office for such period, have such power and authority,
and perform such duties as are provided in these bylaws or as the board of
directors may from time to time determine.
The president may from time to time
designate and appoint Administrative Officers of the corporation in accordance
with the provisions of Section 5.13 of these bylaws.
5.4 Removal and Resignation of
Officers.
Subject to the rights, if any, of a Corporate Officer under any contract of
employment, any Corporate Officer may be removed, either with or without cause,
by the board of directors at any regular or special meeting of the board or,
except in case of a Corporate Officer chosen by the board of directors, by any
Corporate Officer upon whom such power of removal may be conferred by the
board of directors.
Any Corporate Officer may resign at any
time by giving written notice to the corporation. Any resignation
shall take effect at the date of the receipt of that notice or at any later time
specified in that notice; and, unless otherwise specified in that notice,
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 corporation under any contract to which the Corporate Officer is
a party.
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5.5 Vacancies in Offices. A
vacancy in any office because of death, resignation, removal, disqualification
or any other cause shall be filled in the manner prescribed in these bylaws
for regular appointments to that office.
5.6 Chairman of the Board.
The chairman of the board, if such an officer be elected, shall, if present,
preside at meetings of the board of directors and exercise such other powers and
perform such other duties as may from time to time be assigned to him by the
board of directors or as may be prescribed by these bylaws. If there
is no president, then the chairman of the board shall also be the chief vice
president of the corporation and shall have the powers and duties prescribed in
Section 5.8 of these bylaws.
5.7 Vice
Chairman of the Board.
The vice chairman of the board, if such an officer be elected, shall, if
present, preside at meetings of the board of directors if the chairman of the
board is not present to so preside, and shall exercise such other powers and
perform such other duties as may from time to time be assigned to him by the
board of directors or as may be prescribed by these bylaws.
5.8 President.
Subject to such supervisory powers, if any, as may be given by the board of
directors to the chairman of the board and the vice chairman of the board, if
there be such officers, the president shall be the chief vice president of the
corporation and shall, subject to the control of the board of directors, have
general supervision, direction and control of the business and the officers of
the corporation. The president shall preside at all meetings of the stockholders
and, in the absence or nonexistence of a chairman of the board or vice
chairman of the board, at all meetings of the board of directors. The
president shall have the general powers and duties of management usually vested
in the office of president of a corporation, and shall have such other
powers and perform such other duties as may be prescribed by the board of
directors or these bylaws.
5.9 Vice Presidents.
In the absence or disability of the president, and if there is no chairman of
the board, the vice presidents, if any, in order of their rank as fixed by
the board of directors or, if not ranked, a vice president designated by the
board of directors, shall perform all the duties of the president and when so
acting shall have all the powers of, and be subject to all the restrictions
upon, the president. The vice presidents shall have such other powers
and perform such other duties as from time to time may be prescribed for them
respectively by the board of directors, these bylaws, the president, the
chairman of the board or the vice chairman of the board.
5.10 Secretary.
The secretary shall keep or cause to be kept, at the principal executive office
of the corporation or such other place as the board of directors may direct, a
book of minutes of all meetings and actions of the board of directors,
committees of directors and stockholders. The minutes shall show the
time and place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors’
meetings or committee meetings, the number of shares present or represented at
stockholders’ meetings and the proceedings thereof.
The secretary shall keep, or cause to
be kept, at the principal executive office of the corporation or at the office
of the corporation’s transfer agent or registrar, as determined by resolution of
the board of directors, a share register or a duplicate share register, showing
the names of all stockholders and their addresses, the number and classes of
shares held by each, the number and date of certificates evidencing such shares
and the number and date of cancellation of every certificate surrendered for
cancellation.
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The secretary shall give, or cause to
be given, notice of all meetings of the stockholders and of the board of
directors required to be given by law or by these bylaws. The secretary shall
keep the seal of the corporation, if one be adopted, in safe custody and shall
have such other powers and perform such other duties as may be prescribed by the
board of directors or by these bylaws.
5.11 Chief Financial Officer.
The chief financial officer shall keep and maintain, or cause to be kept and
maintained, adequate and correct books and records of accounts of the properties
and business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings
and shares. The books of account shall at all reasonable times be
open to inspection by any director for a purpose reasonably related to his
position as a director.
The chief financial officer shall
deposit all money and other valuables in the name and to the credit of the
corporation with such depositaries as may be designated by the board of
directors. He or she shall disburse the funds of the corporation as may be
ordered by the board of directors, shall render to the president and directors,
whenever they request it, an account of all of his or her transactions as chief
financial officer and of the financial condition of the corporation, and shall
have such other powers and perform such other duties as may be prescribed by the
board of directors or these bylaws.
5.12 Assistant
Secretary.
The assistant secretary, if any, or, if there is more than one, the assistant
secretaries in the order determined by the board of directors (or if there be no
such determination, then in the order of their election) shall, in the absence
of the secretary or in the event of his or her inability or refusal to act,
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 may from
time to time prescribe.
5.13 Administrative
Officers.
In addition to the Corporate Officers of the corporation as provided in Section
5.1 of these bylaws and such subordinate Corporate Officers as may be appointed
in accordance with Section 5.3 of these bylaws, there may also be such
Administrative Officers of the corporation as may be designated and appointed
from time to time by the president of the corporation. Administrative
Officers shall perform such duties and have such powers as from time to time may
be determined by the president or the board of directors in order to assist the
Corporate Officers in the furtherance of their duties. In the
performance of such duties and the exercise of such powers, however, such
Administrative Officers shall have limited authority to act on behalf of the
corporation as the board of directors shall establish, including but not limited
to limitations on the dollar amount and on the scope of agreements or
commitments that may be made by such Administrative Officers on behalf of the
corporation, which limitations may not be exceeded by such individuals or
altered by the president without further approval by the board of
directors.
5.14 Authority and Duties of
Officers.
In addition to the foregoing powers, authority and duties, all officers of the
corporation shall respectively have such authority and powers and perform such
duties in the management of the business of the corporation as may be designated
from time to time by the board of directors.
ARTICLE
VI
INDEMNIFICATION
OF DIRECTORS, OFFICERS, EMPLOYEES
AND
OTHER AGENTS
6.1 Indemnification of Directors and
Officers.
The corporation shall, to the maximum extent and in the manner permitted by the
General Corporation Law of Delaware as the same now exists or may hereafter be
amended, indemnify any person against expenses (including attorneys’ fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred in connection with any threatened, pending or completed action, suit,
or proceeding in which such person was or is a party or is threatened to be made
a party by reason of the fact that such person is or was a director or officer
of the corporation. For purposes of this Section 6.1, a
“director” or “officer” of the corporation shall mean any person (i) who is
or was a director or officer of the corporation, (ii) who is or was serving
at the request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, or
(iii) who was a director or officer of a corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
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The corporation shall be required to
indemnify a director or officer in connection with an action, suit, or
proceeding (or part thereof) initiated by such director or officer only if the
initiation of such action, suit, or proceeding (or part thereof) by the director
or officer was authorized by the board of directors of the
corporation.
The corporation shall pay the expenses
(including attorney’s fees) incurred by a director or officer of the corporation
entitled to indemnification hereunder in defending any action, suit or
proceeding referred to in this Section 6.1 in advance of its final
disposition; provided, however, that payment of expenses incurred by a director
or officer of the corporation in advance of the final disposition of such
action, suit or proceeding shall be made only upon receipt of an undertaking by
the director or officer to repay all amounts advanced if it should ultimately be
determined that the director or officer is not entitled to be indemnified under
this Section 6.1 or otherwise.
The rights conferred on any person by
this Article shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the corporation’s
certificate of incorporation, these bylaws, agreement, vote of the stockholders
or disinterested directors or otherwise.
Any repeal or modification of the
foregoing provisions of this Article 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.
6.2 Indemnification of
Others.
The corporation shall have the power, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware as the same now exists or
may hereafter be amended, to indemnify any person (other than directors and
officers) against expenses (including attorneys’ fees), judgments, fines,
and amounts paid in settlement actually and reasonably incurred in connection
with any threatened, pending or completed action, suit, or proceeding, in which
such person was or is a party or is threatened to be made a party by reason of
the fact that such person is or was an employee or agent of the
corporation. For purposes of this Section 6.2, an “employee” or
“agent” of the corporation (other than a director or officer) shall mean any
person (i) who is or was an employee or agent of the corporation,
(ii) who is or was serving at the request of the corporation as an employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was an employee or agent of a corporation which
was a predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
6.3 Insurance.
The corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust 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 corporation would have the power to indemnify him or her
against such liability under the provisions of the General Corporation Law of
Delaware.
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6.4 Savings Clause.
If this Article VI or any portion thereof shall be invalidated on any ground by
any court of competent jurisdiction, then the corporation shall nevertheless
indemnify each director, officer, employee or agent against expenses (including
attorney’s fees), judgments, fines and amounts paid in settlement with respect
to any action, suit, proceeding or investigation, whether civil, criminal or
administrative, and whether internal or external, including a grand jury
proceeding and an action or suit brought by or in the right of the corporation,
to the full extent permitted by any applicable portion of this Article that
shall not have been invalidated, or by any other applicable law.
6.5 Continuation of Indemnification and
Advancement of Expenses
.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VI shall, unless otherwise prided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE
VII
RECORDS
AND REPORTS
7.1 Maintenance and Inspection of Share
Register.
The corporation shall keep, either at its principal executive office or the
office of its transfer agent or registrar (if either be appointed), as
determined by resolution of the board of directors, a record of its stockholders
listing the names and addresses of each stockholder 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 of its business and properties.
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 corporation’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 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 to so act on behalf of the
stockholder. The demand under oath shall be directed to the corporation at its
registered office in Delaware or at its principal place of
business.
7.2 Inspection by
Directors.
Any director shall have the right to examine the corporation’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.
7.3 Annual Report to
Stockholders.
The board of directors shall present at each annual meeting a full and clear
statement of the business and condition of the corporation.
7.4 Representation of Shares of Other
Corporations.
The chairman of the board, the vice chairman of the board, the president, any
vice president, the chief financial officer, the secretary or assistant
secretary of this corporation, or any other person authorized by the board of
directors or the president or a vice president, is authorized to vote, represent
and exercise on behalf of this corporation all rights incident to any and all
shares of stock of any other corporation or corporations standing in the name of
this corporation. The authority herein granted 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.
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7.5 Certification and Inspection of
Bylaws.
The original or a copy of these bylaws, as amended or otherwise altered to date,
certified by the secretary, shall be kept at the corporation’s principal
executive office and shall be open to inspection by the stockholders of the
corporation, at all reasonable times during office hours.
ARTICLE
VIII
GENERAL MATTERS
8.1 Record Date for Purposes Other Than
Notice and Voting.
For purposes of determining the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of any other lawful action, the board
of directors may fix, in advance, a record date, which shall not be more than
sixty (60) days before any such action. In that case, only
stockholders of record at the close of business on the date so fixed are
entitled to receive the dividend, distribution or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date so fixed, except as
otherwise provided by law.
If the board of directors does not so
fix a record date, then 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 applicable resolution.
8.2 Checks; Drafts; Evidences of Indebtedness.
From time to time, the board of directors shall determine by resolution which
person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are issued in
the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
8.3 Corporate Contracts and
Instruments: How Executed.
The board of directors, except as otherwise provided in these bylaws, may
authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of directors
or within the agency power of an officer, no officer, agent or employee shall
have any authority to bind the corporation by any contract or engagement or to
pledge its credit or to render it liable for any purpose or for any
amount.
8.4 Stock Certificates; Transfer; Partly
Paid Shares.
The shares of the corporation shall be represented by certificates, provided
that the board of directors of the corporation 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 corporation. Notwithstanding the adoption of such a resolution
by the board of directors, 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 corporation by, the
chairman or vice-chairman of the board of directors, or the president or
vice-president, and by the chief financial officer, or by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of such
corporation 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 corporation with the same effect as if he or
she were such officer, transfer agent or registrar at the date of
issue.
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Certificates for shares shall be of
such form and device as the board of directors may designate and shall state the
name of the record holder of the shares represented thereby; its number; date of
issuance; the number of shares for which it is issued; a summary statement or
reference to the powers, designations, preferences or other special rights of
such stock and the qualifications, limitations or restrictions of such
preferences and/or rights, if any; a statement or summary of liens, if any; a
conspicuous notice of restrictions upon transfer or registration of transfer, if
any; a statement as to any applicable voting trust agreement; and if the shares
be assessable, or, if assessments are collectible by personal action, a plain
statement of such facts.
Upon surrender to the secretary or
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
The corporation 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, or upon the
books and records of the corporation 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 corporation 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.
8.5 Special Designation on
Certificates.
If the corporation 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 corporation shall issue to
represent such class or series of stock; provided, however, that, except as
otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation 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.
8.6 Lost Certificates.
Except as provided in this Section 8.6, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and canceled at the same time. The
board of directors may, in case any share certificate or certificate for any
other security is lost, stolen or destroyed, authorize the issuance of
replacement certificates on such terms and conditions as the board may require;
the board may require indemnification of the corporation secured by a bond or
other adequate security sufficient to protect the corporation against any claim
that may be made against it, including any expense or liability, on account of
the alleged loss, theft or destruction of the certificate or the issuance of the
replacement certificate.
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8.7 Transfer Agents and
Registrars.
The board of directors may appoint one or more transfer agents or transfer
clerks, and one or more registrars, each of which shall be an incorporated bank
or trust company, either domestic or foreign, who shall be appointed at such
times and places as the requirements of the corporation may necessitate and the
board of directors may designate.
8.8 Construction; Definitions.
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the General Corporation Law of Delaware shall
govern the construction of these bylaws. Without limiting the
generality of this provision, as used in these bylaws, the singular number
includes the plural, the plural number includes the singular, and the term
“person” includes both a corporate entity and a natural person.
ARTICLE
IX
AMENDMENTS
The
original or other bylaws of the corporation may be adopted, amended or repealed
by the stockholders entitled to vote; provided, however, that the corporation
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.
Whenever
an amendment or new bylaw is adopted, it shall be copied in the book of bylaws
with the original bylaws, in the appropriate place. If any bylaw is
repealed, the fact of repeal with the date of the meeting at which the repeal
was enacted or the filing of the operative written consent(s) shall be stated in
said book.
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CERTIFICATE
OF SECRETARY
The
undersigned, being the duly elected Secretary of Cornerstone OnDemand, Inc., a
Delaware corporation (the “Company”), does hereby certify that an amendment to
Article III, Section 3.2 of the Bylaws of the Company was approved by Unanimous
Written Consent of the Board of Directors on May 9, 2007, effective upon the
Initial Closing as defined in the Series D Preferred Stock and Warrant Purchase
Agreement, dated as of May 10, 2007, between the Company and the Investors named
therein, and in accordance with Article V of the Company’s Sixth Amended and
Restated Certificate of Incorporation, Article IX of the Bylaws, and Section 109
of the Delaware General Corporation Law. Article III, Section 3.2 of
the Bylaws of the Company has been amended to read in its entirety as
follows:
“The number of directors of the
corporation shall not be less than 1 nor more than 7.”
IN
WITNESS WHEREOF, the undersigned has hereunto subscribed his name this 10th day
of May, 2007.
The
undersigned, Perry Wallack, hereby certifies that he is the duly appointed,
qualified, and acting Secretary of Cornerstone OnDemand, Inc., a Delaware
corporation (the “Company”), and that
on January 28, 2009, pursuant to Article IX of the Company’s Certificate of
Incorporation, the Board of Directors of the Company amended such Bylaws as set
forth below:
Sections 3.9, 3.11 and 3.14
of Article III shall be amended and restated in their entirety to read as
follows:
“3.9 Special Meetings;
Notice. Special meetings
of the board of directors for any purpose or purposes may be called at any time
by the chairman of the board, the vice chairman of the board, the president, any
vice president, the secretary or any two directors.
Notice of
the time and place of special meetings shall be delivered personally or by
telephone to each director or sent by first-class mail, telegram, charges
prepaid, facsimile, electronic mail or other form of electronic transmission
addressed to each director at that director’s address, telephone number,
facsimile number or electronic mail address, as the case may be, as it is shown
on the records of the corporation. If the notice is mailed, it shall
be deposited in the United States mail at least four (4) days before the time of
the holding of the meeting. If the notice is delivered personally or
by telephone, telegram, facsimile, electronic mail or other form of electronic
transmission it shall be delivered personally or by telephone or to the
telegraph company at least forty-eight (48) hours before the time of the holding
of the meeting. Any oral notice given personally or by telephone may
be communicated either to the director or to a person at the office of the
director who the person giving the notice has reason to believe will promptly
communicate it to the director. The notice need not specify the
purpose or the place of the meeting, if the meeting is to be held at the
principal executive office of the corporation.”
“3.11 Waiver of
Notice. Notice of a
meeting need not be given to any director (i) who signs a waiver of notice
or submits a waiver by electronic transmission, whether before or after the
meeting, or (ii) who attends the meeting other than for the express purpose
of objecting at the beginning of the meeting of the transaction of any business
because the meeting is not lawfully called or convened. All such
waivers, consents, electronic transmissions and approvals shall be filed with
the corporate records or made part of the minutes of the meeting. A
waiver of notice need not specify the purpose of any regular or special meeting
of the board.”
“3.14 Board Action by
Written Consent Without a Meeting. Any action required or
permitted to be taken by the board of directors may be taken without a meeting,
provided that all members of the board individually or collectively consent in
writing or by electronic transmission to that action. Such action by
written consent or electronic transmission shall have the same force and effect
as a unanimous vote of the board of directors. Such written consent
or electronic transmission and any counterparts thereof shall be filed with the
minutes of the proceedings of the board of directors”
IN WITNESS WHEREOF, the undersigned has
hereunto set his hand this 21st day of August, 2010.
