ARTICLE
I — CORPORATE OFFICES
1.1 REGISTERED
OFFICE
The
registered office of Cornerstone OnDemand, Inc. shall be fixed in the
corporation’s certificate of incorporation. References in these
bylaws to the certificate of incorporation shall mean the certificate of
incorporation of the corporation, as amended from time to time, including the
terms of any certificate of designations of any series of Preferred
Stock.
1.2 OTHER
OFFICES
The
corporation’s board of directors may at any time establish other 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. The board of directors 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 General Corporation Law of the State
of Delaware (the “DGCL”). In the absence of any
such designation or determination, stockholders’ meetings shall be held at the
corporation’s principal executive office.
2.2 ANNUAL
MEETING
The
annual meeting of stockholders shall be held on such date, at such time, and at
such place (if any) within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the
corporation’s notice of the meeting. At the annual meeting, directors
shall be elected and any other proper business may be transacted.
2.3 SPECIAL
MEETING
(i) A
special meeting of the stockholders, other than those required by statute, may
be called at any time only by (A) the board of directors, (B) the chairperson of
the board of directors, (C) the chief executive officer or (D) the president (in
the absence of a chief executive officer). A special meeting of the
stockholders may not be called by any other person or persons. The board of
directors may cancel, postpone or reschedule any previously scheduled special
meeting at any time, before or after the notice for such meeting has been sent
to the stockholders.
(ii) The
notice of a special meeting shall include the purpose for which the meeting is
called. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting by or at the
direction of the board of directors, the chairperson of the board of directors,
the chief executive officer or the president (in the absence of a chief
executive officer). Nothing contained in this Section 2.3(ii) 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 ADVANCE
NOTICE PROCEDURES
(i) Advance Notice of Stockholder
Business. At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be brought:
(A) pursuant to the corporation’s proxy materials with respect to such
meeting, (B) by or at the direction of the board of directors, or
(C) by a stockholder of the corporation who (1) is a stockholder of
record at the time of the giving of the notice required by this
Section 2.4(i) and on the record date for the determination of stockholders
entitled to vote at the annual meeting and (2) has timely complied in
proper written form with the notice procedures set forth in this
Section 2.4(i). In addition, for business to be properly brought before an
annual meeting by a stockholder, such business must be a proper matter for
stockholder action pursuant to these bylaws and applicable law. Except for
proposals properly made in accordance with Rule 14a-8 under the Securities and
Exchange Act of 1934, and the rules and regulations thereunder (as so amended
and inclusive of such rules and regulations), and included in the notice of
meeting given by or at the direction of the board of directors, for the
avoidance of doubt, clause (C) above shall be the exclusive means for a
stockholder to bring business before an annual meeting of
stockholders.
(a) To
comply with clause (C) of Section 2.4(i) above, a stockholder’s notice
must set forth all information required under this Section 2.4(i) and must
be timely received by the secretary of the corporation. To be timely, a
stockholder’s notice must be received by the secretary at the principal
executive offices of the corporation not later than the 45th day nor earlier
than the 75th day before the one-year anniversary of the date on which the
corporation first mailed its proxy materials or a notice of availability of
proxy materials (whichever is earlier) for the preceding year’s annual meeting;
provided, however, that in the event
that no annual meeting was held in the previous year or if the date of the
annual meeting is advanced by more than 30 days prior to or delayed by more than
60 days after the one-year anniversary of the date of the previous year’s annual
meeting, then, for notice by the stockholder to be timely, it must be so
received by the secretary not earlier than the close of business on the 120th
day prior to such annual meeting and not later than the close of business on the
later of (i) the 90th day prior to such annual meeting, or (ii) the
tenth day following the day on which Public Announcement (as defined below) of
the date of such annual meeting is first made. In no event shall any adjournment
or postponement of an annual meeting or the announcement thereof commence a new
time period for the giving of a stockholder’s notice as described in this
Section 2.4(i)(a). “Public
Announcement” shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press or a comparable national news service
or in a document publicly filed by the corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, or any successor thereto (the “1934 Act”).
(b) To
be in proper written form, a stockholder’s notice to the secretary must set
forth as to each matter of business the stockholder intends to bring before the
annual meeting: (1) a brief description of the business intended to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (2) the name and address, as they appear on the
corporation’s books, of the stockholder proposing such business and any
Stockholder Associated Person (as defined below), (3) the class and number
of shares of the corporation that are held of record or are beneficially owned
by the stockholder or any Stockholder Associated Person and any derivative
positions held or beneficially held by the stockholder or any Stockholder
Associated Person, (4) whether and the extent to which any hedging or other
transaction or series of transactions has been entered into by or on behalf of
such stockholder or any Stockholder Associated Person with respect to any
securities of the corporation, and a description of any other agreement,
arrangement or understanding (including any short position or any borrowing or
lending of shares), the effect or intent of which is to mitigate loss to, or to
manage the risk or benefit from share price changes for, or to increase or
decrease the voting power of, such stockholder or any Stockholder Associated
Person with respect to any securities of the corporation, (5) any material
interest of the stockholder or a Stockholder Associated Person in such business,
and (6) a statement whether either such stockholder or any Stockholder
Associated Person will deliver a proxy statement and form of proxy to holders of
at least the percentage of the corporation’s voting shares required under
applicable law to carry the proposal (such information provided and statements
made as required by clauses (1) through (6), a “Business Solicitation
Statement”). In addition, to be in proper written form, a stockholder’s
notice to the secretary must be supplemented not later than ten days following
the record date for notice of the meeting to disclose the information contained
in clauses (3) and (4) above as of the record date for notice of the meeting.
For purposes of this Section 2.4, a “Stockholder Associated Person”
of any stockholder shall mean (i) any person controlling, directly or
indirectly, or acting in concert with, such stockholder, (ii) any
beneficial owner of shares of stock of the corporation owned of record or
beneficially by such stockholder and on whose behalf the proposal or nomination,
as the case may be, is being made, or (iii) any person controlling,
controlled by or under common control with such person referred to in the
preceding clauses (i) and (ii).
(c) Without
exception, no business shall be conducted at any annual meeting except in
accordance with the provisions set forth in this Section 2.4(i) and, if
applicable, Section 2.4(ii). In addition, business proposed to be brought
by a stockholder may not be brought before the annual meeting if such
stockholder or a Stockholder Associated Person, as applicable, takes action
contrary to the representations made in the Business Solicitation Statement
applicable to such business or if the Business Solicitation Statement applicable
to such business contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein not misleading.
The chairperson of the annual meeting shall, if the facts warrant, determine and
declare at the annual meeting that business was not properly brought before the
annual meeting and in accordance with the provisions of this
Section 2.4(i), and, if the chairperson should so determine, he or she
shall so declare at the annual meeting that any such business not properly
brought before the annual meeting shall not be conducted.
(ii) Advance Notice of Director
Nominations at Annual Meetings. Notwithstanding anything in these bylaws
to the contrary, only persons who are nominated in accordance with the
procedures set forth in this Section 2.4(ii) shall be eligible for election
or re-election as directors at an annual meeting of stockholders. Nominations of
persons for election or re-election to the board of directors of the corporation
shall be made at an annual meeting of stockholders only (A) by or at the
direction of the board of directors or (B) by a stockholder of the
corporation who (1) was a stockholder of record at the time of the giving
of the notice required by this Section 2.4(ii) and on the record date for
the determination of stockholders entitled to vote at the annual meeting and
(2) has complied with the notice procedures set forth in this
Section 2.4(ii). In addition to any other applicable requirements, for a
nomination to be made by a stockholder, the stockholder must have given timely
notice thereof in proper written form to the secretary of the
corporation.
(a) To
comply with clause (B) of Section 2.4(ii) above, a nomination to be
made by a stockholder must set forth all information required under this
Section 2.4(ii) and must be received by the secretary of the corporation at
the principal executive offices of the corporation at the time set forth in, and
in accordance with, the final three sentences of Section 2.4(i)(a)
above.
(b) To
be in proper written form, such stockholder’s notice to the secretary must set
forth:
(1) as
to each person (a “nominee”) whom the stockholder
proposes to nominate for election or re-election as a director: (A) the
name, age, business address and residence address of the nominee, (B) the
principal occupation or employment of the nominee, (C) the class and number
of shares of the corporation that are held of record or are beneficially owned
by the nominee and any derivative positions held or beneficially held by the
nominee, (D) whether and the extent to which any hedging or other
transaction or series of transactions has been entered into by or on behalf of
the nominee with respect to any securities of the corporation, and a description
of any other agreement, arrangement or understanding (including any short
position or any borrowing or lending of shares), the effect or intent of which
is to mitigate loss to, or to manage the risk or benefit of share price changes
for, or to increase or decrease the voting power of the nominee, (E) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nominations are to be made by the stockholder, (F) a
written statement executed by the nominee acknowledging that as a director of
the corporation, the nominee will owe a fiduciary duty under Delaware law with
respect to the corporation and its stockholders, and (G) any other
information relating to the nominee that would be required to be disclosed about
such nominee if proxies were being solicited for the election or re-election of
the nominee as a director, or that is otherwise required, in each case pursuant
to Regulation 14A under the 1934 Act (including without limitation the nominee’s
written consent to being named in the proxy statement, if any, as a nominee and
to serving as a director if elected or re-elected, as the case may be);
and
(2) as
to such stockholder giving notice, (A) the information required to be
provided pursuant to clauses (2) through (5) of Section 2.4(i)(b)
above, and the supplement referenced in the second sentence of
Section 2.4(i)(b) above (except that the references to “business” in such
clauses shall instead refer to nominations of directors for purposes of this
paragraph), and (B) a statement whether either such stockholder or
Stockholder Associated Person will deliver a proxy statement and form of proxy
to holders of a number of the corporation’s voting shares reasonably believed by
such stockholder or Stockholder Associated Person to be necessary to elect or
re-elect such nominee(s) (such information provided and statements made as
required by clauses (A) and (B) above, a “Nominee Solicitation
Statement”).
(c) At
the request of the board of directors, any person nominated by a stockholder for
election or re-election as a director must furnish to the secretary of the
corporation (1) that information required to be set forth in the
stockholder’s notice of nomination of such person as a director as of a date
subsequent to the date on which the notice of such person’s nomination was given
and (2) such other information as may reasonably be required by the
corporation to determine the eligibility of such proposed nominee to serve as an
independent director or audit committee financial expert of the corporation
under applicable law, securities exchange rule or regulation, or any
publicly-disclosed corporate governance guideline or committee charter of the
corporation and (3) that could be material to a reasonable stockholder’s
understanding of the independence, or lack thereof, of such nominee; in the
absence of the furnishing of such information if requested, such stockholder’s
nomination shall not be considered in proper form pursuant to this
Section 2.4(ii).
(d) Without
exception, no person shall be eligible for election or re-election as a director
of the corporation at an annual meeting of stockholders unless nominated in
accordance with the provisions set forth in this Section 2.4(ii). In
addition, a nominee shall not be eligible for election or re-election if a
stockholder or Stockholder Associated Person, as applicable, takes action
contrary to the representations made in the Nominee Solicitation Statement
applicable to such nominee or if the Nominee Solicitation Statement applicable
to such nominee contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein not misleading.
The chairperson of the annual meeting shall, if the facts warrant, determine and
declare at the annual meeting that a nomination was not made in accordance with
the provisions prescribed by these bylaws, and if the chairperson should so
determine, he or she shall so declare at the annual meeting, and the defective
nomination shall be disregarded.
(iii) Advance
Notice of Director Nominations for Special Meetings.
(a) For
a special meeting of stockholders at which directors are to be elected or
re-elected, nominations of persons for election or re-election to the board of
directors shall be made only (1) by or at the direction of the board of
directors or (2) by any stockholder of the corporation who (A) is a
stockholder of record at the time of the giving of the notice required by this
Section 2.4(iii) and on the record date for the determination of
stockholders entitled to vote at the special meeting and (B) delivers a timely
written notice of the nomination to the secretary of the corporation that
includes the information set forth in Sections 2.4(ii)(b) and (ii)(c)
above. To be timely, such notice must be received by the secretary at the
principal executive offices of the corporation not later than the close of
business on the later of the 90th day prior to such special meeting or the tenth
day following the day on which Public Announcement is first made of the date of
the special meeting and of the nominees proposed by the board of directors to be
elected or re-elected at such meeting. A person shall not be eligible for
election or re-election as a director at a special meeting unless the person is
nominated (i) by or at the direction of the board of directors or
(ii) by a stockholder in accordance with the notice procedures set forth in
this Section 2.4(iii). In addition, a nominee shall not be eligible for
election or re-election if a stockholder or Stockholder Associated Person, as
applicable, takes action contrary to the representations made in the Nominee
Solicitation Statement applicable to such nominee or if the Nominee Solicitation
Statement applicable to such nominee contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements therein
not misleading.
(b) The
chairperson of the special meeting shall, if the facts warrant, determine and
declare at the meeting that a nomination or business was not made in accordance
with the procedures prescribed by these bylaws, and if the chairperson should so
determine, he or she shall so declare at the meeting, and the defective
nomination or business shall be disregarded.
(iv) Other Requirements and Rights.
In addition to the foregoing provisions of this Section 2.4, a
stockholder must also comply with all applicable requirements of state law and
of the 1934 Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 2.4. Nothing in this
Section 2.4 shall be deemed to affect any rights of:
(a) a
stockholder to request inclusion of proposals in the corporation’s proxy
statement pursuant to Rule 14a-8 (or any successor provision) under the 1934
Act; or
(b) the
corporation to omit a proposal from the corporation’s proxy statement pursuant
to Rule 14a-8 (or any successor provision) under the 1934 Act.
2.5 NOTICE
OF STOCKHOLDERS’ MEETINGS
Whenever
stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which shall state the place, if
any, date and hour of the meeting, 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 meeting, the record date for determining the stockholders
entitled to vote at the meeting, if such date is different from the record date
for determining stockholders entitled to notice of the meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called.
Except as otherwise provided in the DGCL, the certificate of incorporation or
these bylaws, the written notice of any meeting of stockholders shall be given
not less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting as of the record date for
determining the stockholders entitled to notice of the meeting.
2.6 QUORUM
The
holders of a majority of the stock issued and outstanding and 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. Where a
separate vote by a class or series or classes or series is required, a majority
of the outstanding shares of such class or series or classes or series, present
in person or represented by proxy, shall constitute a quorum entitled to take
action with respect to that vote on that matter, except as otherwise provided by
law, the certificate of incorporation or these bylaws
If a
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 power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present or represented. At
such adjourned meeting at which a quorum is present or represented, any business
may be transacted that might have been transacted at the meeting as originally
noticed.
2.7 ADJOURNED
MEETING; NOTICE
When a
meeting is adjourned to another time or place, unless these bylaws otherwise
require, 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 corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than 30 days, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. If after the adjournment
a new record date for stockholders entitled to vote is fixed for the adjourned
meeting, the board of directors shall fix a new record date for notice of such
adjourned meeting in accordance with Section 213(a) of the DGCL and Section
2.11of these bylaws, and shall give notice of the adjourned meeting to each
stockholder of record entitled to vote at such adjourned meeting as of the
record date fixed for notice of such adjourned meeting.
2.8 CONDUCT
OF BUSINESS
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. The chairperson of any meeting of
stockholders shall be designated by the board of directors; in the absence of
such designation, the chairperson of the board, if any, the chief executive
officer (in the absence of the chairperson) or the president (in the absence of
the chairperson of the board and the chief executive officer), or in their
absence any other executive officer of the corporation, shall serve as
chairperson of the stockholder 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 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 or these bylaws,
each stockholder shall be entitled to one vote for each share of capital stock
held by such stockholder.
Except as
otherwise required by law, the certificate of incorporation or these bylaws, in
all matters other than the election of directors, the affirmative vote of a
majority of the voting power of the shares present in person or represented by
proxy at the meeting and entitled to vote on the subject matter shall be the act
of the stockholders. Except as otherwise required by law, the certificate of
incorporation or these bylaws, directors shall be elected by a plurality of the
voting power of the shares present in person or represented by proxy at the
meeting and entitled to vote on the election of directors. Where a separate vote
by a class or series or classes or series is required, in all matters other than
the election of directors, the affirmative vote of the majority of shares of
such class or series or classes or series present in person or represented by
proxy at the meeting shall be the act of such class or series or classes or
series, except as otherwise provided by law, the certificate of incorporation or
these bylaws.
2.10 STOCKHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Subject
to the rights of the holders of the shares of any series of Preferred Stock or
any other class of stock or series thereof that have been expressly granted the
right to take action by written consent, any action required or permitted to be
taken by the stockholders of the corporation must be effected at a duly called
annual or special meeting of stockholders of the corporation and may not be
effected by any consent in writing by such stockholders.
2.11 RECORD
DATES
In order
that the corporation may determine the stockholders entitled to notice of any
meeting of stockholders or any adjournment thereof, the board of directors may
fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the board of directors and which
record date shall not be more than 60 nor less than 10 days before the date of
such meeting. If the board of directors so fixes a date, such date shall also be
the record date for determining the stockholders entitled to vote at such
meeting unless the board of directors determines, at the time it fixes such
record date, that a later date on or before the date of the meeting shall be the
date for making such determination.
If no
record date is fixed by the board of directors, the record date for determining
stockholders entitled to notice of and to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held.
A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the
board of directors may fix a new record date for determination of stockholders
entitled to vote at the adjourned meeting, and in such case shall also fix as
the record date for stockholders entitled to notice of such adjourned meeting
the same or an earlier date as that fixed for determination of stockholders
entitled to vote in accordance with the provisions of Section 213 of the DGCL
and this Section 2.11 at the adjourned meeting.
In order
that the corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders 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 of directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
2.12 PROXIES
Each
stockholder entitled to vote at a meeting of stockholders 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. A
written proxy may be in the form of a telegram, cablegram, or other means of
electronic transmission which sets forth or is submitted with information from
which it can be determined that the telegram, cablegram, or other means of
electronic transmission was authorized by the person.
2.13 LIST
OF STOCKHOLDERS ENTITLED TO VOTE
The
officer who has charge of the stock ledger of the corporation shall prepare and
make, at least 10 days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting; provided, however, if the
record date for determining the stockholders entitled to vote is less than 10
days before the meeting date, the list shall reflect the stockholders entitled
to vote as of the tenth day before the meeting date. The stockholder
list shall be arranged in alphabetical order and show the address of each
stockholder and the number of shares registered in the name of each stockholder.
The corporation 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 corporation’s principal place
of business. In the event that the corporation determines to make the list
available on an electronic network, the corporation may take reasonable steps to
ensure that such information is available only to stockholders of the
corporation. 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 examined 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.
2.14 INSPECTORS
OF ELECTION
Before
any meeting of stockholders, the board of directors shall appoint an inspector
or inspectors of election to act at the meeting or its adjournment. The number
of inspectors shall be either one (1) or three (3). If any person appointed as
inspector fails to appear or fails or refuses to act, then the chairperson of
the meeting may, and upon the request of any stockholder or a stockholder’s
proxy shall, appoint a person to fill that vacancy.
Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath to execute faithfully the duties of inspector with strict
impartiality and according to the best of his or her ability. The
inspector or inspectors so appointed and designated shall (i) ascertain the
number of shares of capital stock of the corporation outstanding and the voting
power of each share, (ii) determine the shares of capital stock of the
corporation represented at the meeting and the validity of proxies and ballots,
(iii) count all votes and ballots, (iv) determine and retain for a reasonable
period a record of the disposition of any challenges made to any determination
by the inspectors, and (v) certify their determination of the number of shares
of capital stock of the corporation represented at the meeting and such
inspector or inspectors’ count of all votes and ballots.
In
determining the validity and counting of proxies and ballots cast at any meeting
of stockholders of the corporation, the inspector or inspectors may consider
such information as is permitted by applicable law. If there are three (3)
inspectors of election, the decision, act or certificate of a majority is
effective in all respects as the decision, act or certificate of
all.
ARTICLE
III — DIRECTORS
3.1 POWERS
The
business and affairs of the corporation shall be managed by or under the
direction of the board of directors, except as may be otherwise provided in the
DGCL or the certificate of incorporation.
3.2 NUMBER
OF DIRECTORS
The board
of directors shall consist of one or more members, each of whom shall be a
natural person. Unless the certificate of incorporation fixes the number of
directors, the number of directors shall be determined from time to time solely
by resolution of the board of directors. No reduction of the authorized number
of directors shall have the effect of removing any director before that
director’s term of office expires.
3.3 ELECTION,
QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as
provided in Section 3.4 of these bylaws, each director, including a
director elected to fill a vacancy, shall hold office until the expiration of
the term for which elected and until such director’s successor is elected and
qualified or until such director’s earlier death, resignation or removal.
Directors need not be stockholders unless so required by the certificate of
incorporation or these bylaws. The certificate of incorporation or these bylaws
may prescribe other qualifications for directors.
3.4 RESIGNATION
AND VACANCIES
Any
director may resign at any time upon notice given in writing or by electronic
transmission to the corporation; provided, however, that if
such notice is given by electronic transmission, 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 director. A
resignation is effective when the resignation is delivered unless the
resignation specifies a later effective date or an effective date determined
upon the happening of an event or events. Acceptance of such resignation shall
not be necessary to make it effective. A resignation which is
conditioned upon the director failing to receive a specified vote for reelection
as a director may provide that it is irrevocable. Unless otherwise provided in
the certificate of incorporation or these bylaws, when one or more directors
resign from the board of directors, 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.
Unless
otherwise provided in the certificate of incorporation or these bylaws,
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 shall be filled only by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. If the directors are divided into classes, a person so elected by the
directors then in office to fill a vacancy or newly created directorship shall
hold office until the next election of the class for which such director shall
have been chosen and until his or her successor shall have been duly elected and
qualified.
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 of directors
(as constituted immediately prior to any such increase), the Court of Chancery
may, upon application of any stockholder or stockholders holding at least 10% of
the voting stock 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.
3.5 PLACE
OF MEETINGS; MEETINGS BY TELEPHONE
The board
of directors 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 of directors, or any committee designated by the board of
directors, may participate in a meeting of the board of directors, or any
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.
3.6 REGULAR
MEETINGS
Regular
meetings of the board of directors may be held without notice at such time and
at such place as shall from time to time be determined by the board of
directors.
3.7 SPECIAL
MEETINGS; NOTICE
Special
meetings of the board of directors for any purpose or purposes may be called at
any time by the chairperson of the board of directors, the chief executive
officer, the president, the secretary or a majority of the authorized number of
directors, at such times and places as he or she or they shall
designate.
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 corporation’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 corporation’s
principal executive office) nor the purpose of the meeting.
3.8 QUORUM;
VOTING
At all
meetings of the board of directors, a majority of the total authorized number of
directors shall constitute a quorum for the transaction of business. If a quorum
is not present at any meeting of the board of directors, 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. 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.
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 of directors, except as may be otherwise
specifically provided by statute, the certificate of incorporation or these
bylaws.
If the
certificate of incorporation provides that one or more directors shall have more
or less than one vote per director on any matter, every reference in these
bylaws to a majority or other proportion of the directors shall refer to a
majority or other proportion of the votes of the directors.
3.9 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 of
directors, or of any committee thereof, may be taken without a meeting if all
members of the board of directors 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 of directors 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.
3.10 FEES
AND COMPENSATION OF DIRECTORS
3.11 REMOVAL
OF DIRECTORS
A
director may be removed from office by the stockholders of the corporation only
for cause.
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
IV — COMMITTEES
4.1 COMMITTEES
OF DIRECTORS
The board
of directors may designate one or more committees, each committee to consist of
one or more of the directors of the corporation. The board of directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. 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 of directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the board of directors or in these bylaws, shall
have and may exercise all the powers and authority of the board of directors in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers that may require it; but
no such committee shall have the power or authority to (i) approve or
adopt, or recommend to the stockholders, any action or matter (other than the
election or removal of directors) expressly required by the DGCL to be submitted
to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the
corporation.
4.2 COMMITTEE
MINUTES
Each
committee shall keep regular minutes of its meetings and report the same to the
board of directors when required.
4.3 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 3.5
(place of meetings and meetings by telephone);
(ii) Section 3.6
(regular meetings);
(iii) Section 3.7
(special meetings; notice);
(iv) Section 3.8
(quorum; voting);
(v) Section 3.9
(action without a meeting); and
(vi) Section 7.5
(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 of directors and its members. However:
(i) the
time of regular meetings of committees may be determined by resolution of the
committee;
(ii) special
meetings of committees may also be called by resolution of the committee;
and
(iii) 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.
4.4 SUBCOMMITTEES
Unless
otherwise provided in the certificate of incorporation, these bylaws or the
resolutions of the board of directors designating the committee, a committee may
create one or more subcommittees, each subcommittee to consist of one or more
members of the committee, and delegate to a subcommittee any or all of the
powers and authority of the committee.
ARTICLE
V — OFFICERS
5.1 OFFICERS
The
officers of the corporation shall be a president and a secretary. The
corporation may also have, at the discretion of the board of directors, a
chairperson of the board of directors, a vice chairperson of the board of
directors, a chief executive officer, a chief financial officer or treasurer,
one or more vice presidents, one or more assistant vice presidents, 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.
5.2 APPOINTMENT
OF OFFICERS
The board
of directors shall appoint the officers of the corporation, except such officers
as may be appointed in accordance with the provisions of Section 5.3 of
these bylaws, subject to the rights, if any, of an officer under any contract of
employment. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in this Section 5 for the regular election to such
office.
5.3 SUBORDINATE
OFFICERS
The board
of directors 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 corporation 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 of directors
may from time to time determine.
5.4 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 of directors at any regular or special meeting of the
board of directors or, except in the case of an officer chosen by the board of
directors, by any officer upon whom such power of removal may be conferred by
the board of directors.
Any
officer may resign at any time by giving written or electronic notice to the
corporation; provided,
however, that if such notice is given by electronic transmission, 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 officer. 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 corporation under any contract to which the officer
is a party.
5.5 VACANCIES
IN OFFICES
Any
vacancy occurring in any office of the corporation shall be filled by the board
of directors or as provided in Section 5.3.
5.6 REPRESENTATION
OF SHARES OF OTHER CORPORATIONS
The
chairperson of the board of directors, the president, any vice president, the
treasurer, 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 any other corporation
or corporations standing in the name of this corporation. 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.
5.7 AUTHORITY
AND DUTIES OF OFFICERS
All
officers of the corporation shall respectively have such authority 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 and, to the extent not so
provided, as generally pertain to their respective offices, subject to the
control of the board of directors.
ARTICLE
VI — STOCK
6.1 STOCK
CERTIFICATES; PARTLY PAID SHARES
The
shares of the corporation shall be represented by certificates, provided that
the board of directors 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. Every holder of stock
represented by certificates shall be entitled to have a certificate signed by,
or in the name of the corporation by the chairperson of the board of directors
or vice-chairperson of the board of directors, or the president or a
vice-president, and by the treasurer or an assistant treasurer, or the secretary
or an assistant secretary of the 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 such
person were such officer, transfer agent or registrar at the date of issue. The
corporation shall not have power to issue a certificate in bearer
form.
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.
6.2 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 DGCL, 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, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights. Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to this section 6.2 or Sections 156, 202(a)
or 218(a) of the DGCL or with respect to this section 6.2 a statement that
the corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Except as otherwise expressly provided by law, the rights and obligations of the
holders of uncertificated stock and the rights and obligations of the holders of
certificates representing stock of the same class and series shall be
identical.
6.3 LOST,
STOLEN OR DESTROYED 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 corporation and cancelled at the same time. The corporation
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 corporation may require the owner of the lost, stolen or
destroyed certificate, or such owner’s legal representative, to give the
corporation 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 DIVIDENDS
The board
of directors, subject to any restrictions contained in the certificate of
incorporation or applicable law, may declare and pay dividends upon the shares
of the corporation’s capital stock. Dividends may be paid in cash, in property,
or in shares of the corporation’s capital stock, subject to the provisions of
the certificate of incorporation.
The board
of directors may set apart out of any of the funds of the corporation 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 corporation, and meeting
contingencies.
6.5 TRANSFER
OF STOCK
Transfers
of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by an attorney duly authorized, and,
if such stock is certificated, upon the surrender of a certificate or
certificates for a like number of shares, properly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer; provided, however, that such
succession, assignment or authority to transfer is not prohibited by the
certificate of incorporation, these bylaws, applicable law or
contract.
6.6 STOCK
TRANSFER AGREEMENTS
The
corporation 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 corporation to
restrict the transfer of shares of stock of the corporation of any one or more
classes owned by such stockholders in any manner not prohibited by the
DGCL.
6.7 REGISTERED
STOCKHOLDERS
The
corporation:
(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.
ARTICLE
VII — MANNER OF GIVING NOTICE AND WAIVER
7.1 NOTICE
OF STOCKHOLDERS’ MEETINGS
Notice of
any meeting of stockholders, if mailed, is given when deposited in the United
States mail, postage prepaid, directed to the stockholder at such stockholder’s
address as it appears on the corporation’s records. An affidavit of the
secretary or an assistant secretary of the corporation or of the transfer agent
or other agent of the corporation that the notice has been given shall, in the
absence of fraud, be prima
facie evidence of the facts stated therein.
7.2 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 corporation 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 corporation. Any such consent shall be deemed revoked
if:
(i) the
corporation is unable to deliver by electronic transmission two consecutive
notices given by the corporation in accordance with such consent;
and
(ii) such
inability becomes known to the secretary or an assistant secretary of the
corporation or to the transfer agent, or other person responsible for the giving
of notice.
(2) However,
the inadvertent failure to treat such inability as a revocation shall not
invalidate any meeting or other action.
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;
|
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(ii)
|
if
by electronic mail, when directed to an electronic mail address at which
the stockholder has consented to receive
notice;
|
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(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
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(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 corporation 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.
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 NOTICE
TO STOCKHOLDERS SHARING AN ADDRESS
Except as
otherwise prohibited under the DGCL, without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders
given by the corporation under the provisions of the DGCL, the certificate of
incorporation or these bylaws shall be effective if given by a single written
notice to stockholders who share an address if consented to by the stockholders
at that address to whom such notice is given. Any such consent shall be
revocable by the stockholder by written notice to the corporation. Any
stockholder who fails to object in writing to the corporation, within 60 days of
having been given written notice by the corporation of its intention to send the
single notice, shall be deemed to have consented to receiving such single
written notice.
7.4 NOTICE
TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL
Whenever
notice is required to be given, under the DGCL, the certificate of incorporation
or these bylaws, to any person with whom communication is unlawful, the giving
of such notice to such person shall not be required and there shall be no duty
to apply to any governmental authority or agency for a license or permit to give
such notice to such person. Any action or meeting which shall be taken or held
without notice to any such person with whom communication is unlawful shall have
the same force and effect as if such notice had been duly given. In the event
that the action taken by the corporation is such as to require the filing of a
certificate under the DGCL, the certificate shall state, if such is the fact and
if notice is required, that notice was given to all persons entitled to receive
notice except such persons with whom communication is unlawful.
7.5 WAIVER
OF NOTICE
Whenever
notice is required to be given to stockholders, directors or other persons 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 or the board of directors, as the
case may be, 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
VIII — INDEMNIFICATION
8.1 INDEMNIFICATION
OF DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS
Subject
to the other provisions of this Article VIII, the corporation shall
indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in
effect, any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a “Proceeding”) (other than an
action by or in the right of the corporation) by reason of the fact that such
person is or was a director of the corporation or an officer of the corporation,
or while a director of the corporation or officer of the corporation is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such Proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person’s conduct was
unlawful. The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which such person reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that such
person’s conduct was unlawful.
8.2 INDEMNIFICATION
OF DIRECTORS AND OFFICERS IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION
Subject
to the other provisions of this Article VIII, the corporation shall
indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in
effect, any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or while a director
or officer of the corporation is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys’ fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
8.3 SUCCESSFUL
DEFENSE
To the
extent that a present or former director or officer of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described in Section 8.1 or Section 8.2, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection therewith.
8.4 INDEMNIFICATION
OF OTHERS
Subject
to the other provisions of this Article VIII, the corporation shall have
power to indemnify its employees and its agents to the extent not prohibited by
the DGCL or other applicable law. The board of directors shall have the power to
delegate the determination of whether employees or agents shall be indemnified
to such person or persons as the board of determines.
8.5 ADVANCED
PAYMENT OF EXPENSES
Expenses
(including attorneys’ fees) incurred by an officer or director of the
corporation in defending any Proceeding shall be paid by the corporation in
advance of the final disposition of such Proceeding upon receipt of a written
request therefor (together with documentation reasonably evidencing such
expenses) and an undertaking by or on behalf of the person to repay such amounts
if it shall ultimately be determined that the person is not entitled to be
indemnified under this Article VIII or the DGCL. Such expenses (including
attorneys’ fees) incurred by former directors and officers or other employees
and agents may be so paid upon such terms and conditions, if any, as the
corporation deems reasonably appropriate and shall be subject to the
corporation’s expense guidelines. The right to advancement of expenses shall not
apply to any claim for which indemnity is excluded pursuant to these bylaws, but
shall apply to any Proceeding referenced in Section 8.6(ii) or 8.6(iii)
prior to a determination that the person is not entitled to be indemnified by
the corporation.
8.6 LIMITATION
ON INDEMNIFICATION
Subject
to the requirements in Section 8.3 and the DGCL, the corporation shall not
be obligated to indemnify any person pursuant to this Article VIII in
connection with any Proceeding (or any part of any Proceeding):
(i) for
which payment has actually been made to or on behalf of such person under any
statute, insurance policy, indemnity provision, vote or otherwise, except with
respect to any excess beyond the amount paid;
(ii) for
an accounting or disgorgement of profits pursuant to Section 16(b) of the
1934 Act, or similar provisions of federal, state or local statutory law or
common law, if such person is held liable therefor (including pursuant to any
settlement arrangements);
(iii) for
any reimbursement of the corporation by such person of any bonus or other
incentive-based or equity-based compensation or of any profits realized by such
person from the sale of securities of the corporation, as required in each case
under the 1934 Act (including any such reimbursements that arise from an
accounting restatement of the corporation pursuant to Section 304 of the
Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the
payment to the corporation of profits arising from the purchase and sale by such
person of securities in violation of Section 306 of the Sarbanes-Oxley
Act), if such person is held liable therefor (including pursuant to any
settlement arrangements);
(iv) initiated
by such person against the corporation or its directors, officers, employees,
agents or other indemnitees, unless (a) the board of directors authorized
the Proceeding (or the relevant part of the Proceeding) prior to its initiation,
(b) the corporation provides the indemnification, in its sole discretion,
pursuant to the powers vested in the corporation under applicable law,
(c) otherwise required to be made under Section 8.7 or
(d) otherwise required by applicable law; or
(v) if
prohibited by applicable law; provided, however, that if
any provision or provisions of this Article VIII shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (1) the validity, legality
and enforceability of the remaining provisions of this Article VIII (including,
without limitation, each portion of any paragraph or clause containing any such
provision held to be invalid, illegal or unenforceable, that is not itself held
to be invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (2) to the fullest extent possible, the provisions of this
Article VIII (including, without limitation, each such portion of any paragraph
or clause containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforcebable.
8.7 DETERMINATION;
CLAIM
If a
claim for indemnification or advancement of expenses under this
Article VIII is not paid in full within 90 days after receipt by the
corporation of the written request therefor, the claimant shall be entitled to
an adjudication by a court of competent jurisdiction of his or her entitlement
to such indemnification or advancement of expenses. The corporation shall
indemnify such person against any and all expenses that are incurred by such
person in connection with any action for indemnification or advancement of
expenses from the corporation under this Article VIII, to the extent such
person is successful in such action, and to the extent not prohibited by law. In
any such suit, the corporation shall, to the fullest extent not prohibited by
law, have the burden of proving that the claimant is not entitled to the
requested indemnification or advancement of expenses.
8.8 NON-EXCLUSIVITY
OF RIGHTS
The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VIII shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under the certificate of incorporation or any statute, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person’s official capacity and as to action in another capacity while holding
such office. The corporation is specifically authorized to enter into individual
contracts with any or all of its directors, officers, employees or agents
respecting indemnification and advancement of expenses, to the fullest extent
not prohibited by the DGCL or other applicable law.
8.9 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 such person and incurred by
such person in any such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to indemnify such
person against such liability under the provisions of the DGCL.
8.10 SURVIVAL
The
rights to indemnification and advancement of expenses conferred by this
Article VIII shall 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.
8.11 EFFECT
OF REPEAL OR MODIFICATION
Any
amendment, alteration or repeal 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 such amendment, alteration or repeal.
8.12 CERTAIN
DEFINITIONS
For
purposes of this Article VIII, references to the “corporation” shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents, so that any person who
is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article VIII with respect to the resulting or
surviving corporation as such person would have with respect to such constituent
corporation if its separate existence had continued. For purposes of this
Article VIII, references to “other enterprises” shall
include employee benefit plans; references to “fines” shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to “serving at the
request of the corporation” shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner “not opposed to the best interests of
the corporation” as referred to in this Article VIII.
ARTICLE
IX — GENERAL MATTERS
9.1 EXECUTION
OF CORPORATE CONTRACTS AND INSTRUMENTS
Except as
otherwise provided by law, the certificate of incorporation or these bylaws, the
board of directors may authorize any officer or officers, or agent or agents, to
enter into any contract or execute any document or 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 power or 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.
9.2 FISCAL
YEAR
The
fiscal year of the corporation shall be fixed by resolution of the board of
directors and may be changed by the board of directors.
9.3 SEAL
The
corporation may adopt a corporate seal, which shall be adopted and which may be
altered by the board of directors. The corporation may use the corporate seal by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
9.4 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 an
entity and a natural person.
ARTICLE
X — AMENDMENTS
These
bylaws may be adopted, amended or repealed by the stockholders entitled to vote;
provided, however, that
the affirmative vote of the holders of at least 70% of the total voting power of
outstanding voting securities, voting together as a single class, shall be
required for the stockholders of the corporation to alter, amend or repeal, or
adopt any bylaw inconsistent with, the following provisions of these bylaws:
Article II, Sections 3.1, 3.2, 3.4 and 3.11 of Article III, Article VIII and
this Article X (including, without limitation, any such Article or Section as
renumbered as a result of any amendment, alteration, change, repeal, or adoption
of any other Bylaw). The board of directors shall also have the power
to adopt, amend or repeal bylaws; provided, however, that a
bylaw amendment adopted by stockholders which specifies the votes that shall be
necessary for the election of directors shall not be further amended or repealed
by the board of directors.