Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-1/A Pre-Effective Amendment to Registration Statement HTML 1.69M
(General Form)
11: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 7K
12: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 29K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 127K
3: EX-3.3 Articles of Incorporation/Organization or By-Laws HTML 25K
4: EX-3.4 Articles of Incorporation/Organization or By-Laws HTML 133K
5: EX-4.1 Instrument Defining the Rights of Security Holders HTML 8K
6: EX-10.19 Material Contract HTML 13K
7: EX-10.20 Material Contract HTML 60K
8: EX-10.21 Material Contract HTML 14K
9: EX-10.22 Material Contract HTML 415K
10: EX-23.1 Consent of Experts or Counsel HTML 7K
‘EX-3.4’ — Articles of Incorporation/Organization or By-Laws
The address of the Corporation’s registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware19801. The name of the
registered agent at such address is The Corporation Trust Company.
1.2
OTHER OFFICES
The Board of Directors of the corporation (the “Board”) 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. In the absence of any such designation, stockholders’ meetings shall be
held at the corporation’s principal executive office.
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. At the annual 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, or by the
Chairman of the Board, the Chief Executive Officer or the President, or by one or more stockholders
holding shares in the aggregate entitled to cast votes not less than 10% of the votes at that
meeting.
Effective upon the closing of a firm commitment underwritten public offering of Common Stock
of the Corporation and subject to the rights of the holders of any series of Preferred Stock then
outstanding, special meetings of the stockholders may be called at any time only by the Board
acting pursuant to a resolution duly adopted by a majority of the Board, the Chairman of the Board,
the Chief Executive Officer or the President, but such special meetings may not be called by any
other person or persons.
Only such business shall be considered at a special meeting of stockholders as shall have been
stated in the notice for such meeting. 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 may be held.
2.4
NOTICE OF STOCKHOLDERS’ MEETINGS; EXCEPTION TO REQUIREMENTS OF NOTICE
All notices of meetings with stockholders shall be in writing and shall be sent or otherwise
given in accordance with Section 2.5 of these Bylaws not less than ten (10) nor more than
sixty (60) calendar days before the date of the meeting to each stockholder entitled to vote at
such meeting. The notice shall specify the place, 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 (as authorized by the Board in its sole discretion pursuant to
Section 211(a)(2) of the General Corporation Law of Delaware), and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. Any previously scheduled meeting
of stockholders may be postponed, and, unless the Certificate of Incorporation of the corporation,
as the same may be amended and/or restated from time to time (as so amended and restated, the
“Certificate”) provides otherwise, any special meeting of the stockholders may be cancelled by
resolution duly adopted by a majority of the Board members then in office upon public notice given
prior to the date previously scheduled for such meeting of stockholders.
Whenever notice is required to be given, under the General Corporation Law of Delaware, the
Certificate 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 with the
Secretary of State of Delaware, the certificate shall state, if such is the fact and if
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notice is required, that notice was given to all persons entitled to receive notice except
such persons with whom communication is unlawful.
Whenever notice is required to be given, under any provision of the General Corporation Law of
Delaware, the Certificate or these Bylaws, to any stockholder, and such stockholder has received
(a) notice of two (2) consecutive annual meetings, or (b) at least two (2) payments (if sent by
first-class mail) of dividends or interest on securities during a twelve (12) month period, having
been mailed such notice addressed to such person at such person’s address as shown on the records
of the corporation and have been returned undeliverable, the giving of such notice to such person
shall not be required. Any actions or meeting which shall be taken or held without notice to such
person shall have the same force and effect as if such notice had been duly given. If any such
person shall deliver to the corporation a written notice setting forth such person’s then current
address, the requirement that notice be given to such person shall be reinstated. In the event
that the action taken by the corporation is such as to require the filing of a certificate with the
Secretary of State of Delaware, the certificate need not state that notice was not given to persons
to whom notice was not required to be given pursuant to Section 230(b) of the General Corporation
Law of Delaware.
The exception in subsection (a) of the above paragraph to the requirement that notice be given
shall not be applicable to any notice returned as undeliverable if the notice was given by
electronic transmission.
2.5
MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if mailed, is given when deposited in the
United States mail, postage prepaid, directed to the stockholder at his, her or its address as it
appears on the records of the corporation and otherwise is given when delivered. An affidavit of
the Secretary or an Assistant Secretary, 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.
2.6
QUORUM
The holders of a majority of the stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise provided by statute or the
Certificate. If, however, such quorum is not present or represented at any meeting of the
stockholders, then a majority of the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, 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. The stockholders present at a
duly called meeting at which quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
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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 and place 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 (as authorized by the Board in its sole discretion
pursuant to Section 211(a)(2) of the General Corporation Law of Delaware), are announced at the
meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact
any business that 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. The Chairman of the meeting shall have the power to adjourn any
meeting of stockholders for any reason, and the stockholders shall have the power to adjourn any
meeting of stockholders in accordance with Section 2.6 of these Bylaws.
2.8
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, pledgors and joint owners of stock and to voting trusts and other voting agreements).
Except as otherwise provided in the provisions of Section 213 of the General Corporation Law
of Delaware (relating to the fixing of a date for determination of stockholders of record), or as
may be otherwise provided in the Certificate, each stockholder shall be entitled to one (1) vote
for each share of capital stock held by such stockholder.
In all matters, other than the election of directors and except as otherwise required by law,
the affirmative vote of the majority of shares present or represented by proxy at the meeting and
entitled to vote on the subject matter shall be the act of the stockholders. Directors shall be
elected by a plurality of the votes of the shares present in person or represented by proxy at the
meeting and entitled to vote on the election of directors.
2.9
WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the General Corporation Law of
Delaware, the Certificate or these Bylaws, a written waiver thereof, 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 stated therein, shall be deemed equivalent to notice. Attendance of a person at
a meeting shall constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the stockholders need be
specified
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in any written waiver of notice, or any waiver by electronic transmission, unless so required
by the Certificate or these Bylaws.
2.10
STOCKHOLDER ACTION BY WRITTEN CONSENT
Unless otherwise provided in the Certificate, any action required by the DGCL to be taken at
any annual or special meeting of stockholders of a corporation, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken without a meeting, without prior
notice, and without a vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in writing and who, if
the action had been taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by a sufficient number
of holders to take the action were delivered to the Company as provided in Section 228 of the DGCL.
In the event that the action which is consented to is such as would have required the filing of a
certificate under any provision of the DGCL, if such action had been voted on by stockholders at a
meeting thereof, the certificate filed under such provision shall state, in lieu of any statement
required by such provision concerning any vote of stockholders, that written consent has been given
in accordance with Section 228 of the DGCL.
Effective upon the closing of a firm commitment underwritten public offering of Common Stock
of the Corporation, 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 such holders and may not
be effected by any consent in writing by such holders.
2.11
RECORD DATE FOR STOCKHOLDER NOTICE
In order that the corporation may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board may fix, in advance, a record date, which such date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board and which such date shall
not be more than sixty (60) nor less than ten (10) calendar days before the date of such meeting,
nor more than sixty (60) days prior to any other action.
If the Board does not so fix a record date:
(a) The record date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the day on
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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.
(b) The record date for determining stockholders for any other purpose shall be at the close
of business on the day on which the Board adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may
fix a new record date for the adjourned meeting.
2.12
PROXIES
Each stockholder entitled to vote at a meeting of stockholders may authorize another person or
persons to act for him, her or it by a written proxy, signed by the stockholder 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 stockholder may authorize another
person or persons to act for him, her or it as proxy in the manner(s) provided under Section 212(c)
of the General Corporate Law of Delaware or as otherwise provided under Delaware law. 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
LIST OF STOCKHOLDERS ENTITLED TO VOTE; STOCK LEDGER
The officer who has charge of the stock ledger of a corporation shall prepare and make, at
least ten (10) calendar 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.
Nothing contained in this Section 2.13 shall require the corporation 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: (a) 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 (b) for a period of at least ten (10) calendar days
prior to the meeting during ordinary business hours at the principal place of business of the
corporation.
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 the stockholders of the corporation. The list shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any stockholder who is
present.
2.14
NOMINATIONS AND PROPOSALS BY STOCKHOLDERS AT ANNUAL MEETING
(a) 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: (A)
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specified in the notice of meeting (or any supplement thereto) given by or at the direction of
the Board, (B) otherwise properly brought before the meeting by or at the direction of the Board,
or (C) otherwise properly brought before the meeting by a stockholder (i) who is a stockholder of
record on the date of the giving of notice provided for in this Section 2.14(a) and on the
record date for the determination of stockholders entitled to vote at such annual meeting and (ii)
who complies with the notice procedures set forth in this Section 2.14(a). 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 ninety (90) calendar days in advance of the date that is the one
year anniversary of the date on which the corporation first mailed its proxy statement to
stockholders in connection with the previous year’s annual meeting of stockholders; provided,
however, that in the event that no annual meeting was held in the previous year or the date of the
annual meeting has been changed by more than thirty (30) days from the date of the prior year’s
meeting, notice by the stockholder to be timely must be so received not later than the close of
business on the tenth (10th) day following the day notice of the date of the meeting was
mailed or such public disclosure was made, whichever occurs first. A stockholder’s notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring before the annual
meeting: (i) 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, (ii) the name and address, as
they appear on the corporation’s books, of the stockholder proposing such business, (iii) the class
and number of shares of the corporation which are beneficially owned by the stockholder, (iv) any
material interest of the stockholder in such business and (v) any other information that is
required to be provided by the stockholder pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), in such stockholder’s capacity as a proponent to a
stockholder proposal. Notwithstanding the foregoing, in order to include information with respect
to a stockholder proposal in the proxy statement and form of proxy for a stockholder’s meeting,
stockholders must provide notice as required by the regulations promulgated under the Exchange Act.
Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures set forth in this paragraph (a). The
chairman of the annual meeting shall, if the facts warrant, determine and declare at the meeting
that business was not properly brought before the meeting and in accordance with the provisions of
this paragraph (a), and, if he should so determine, he shall so declare at the meeting that any
such business not properly brought before the meeting shall not be transacted.
(b) Only persons who are nominated in accordance with the procedures set forth in this
paragraph (b) shall be eligible for election as directors, except as otherwise provided in the
Certificate of Incorporation with respect to the right of holders of preferred stock of the
corporation. Nominations of persons for election to the Board of the corporation may be made at a
meeting of stockholders by or at the direction of the Board or by any stockholder of the
corporation entitled to vote in the election of directors at the meeting who complies with the
notice procedures set forth in this paragraph (b). Such nominations, other than those made by or
at the direction of the Board, shall be made pursuant to timely notice in writing to the Secretary
of the corporation in accordance with the provisions of paragraph (a) of this Section 2.14.
Such stockholder’s notice shall set forth
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(i) as to each person, if any, whom the stockholder proposes to nominate for election or
re-election as a director: (A) the name, age, business address and residence address of such
person, (B) the principal occupation or employment of such person, (C) the class and number of
shares of the corporation which are beneficially owned by such person, (D) 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, and (E) any other information relating to such person that is required to be disclosed
in solicitations of proxies for elections of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Exchange Act (including without limitation such person’s
written consent to being named in the proxy statement, if any, as a nominee and to serving as a
director if elected); and (ii) as to such stockholder giving notice, the information required to be
provided pursuant to paragraph (a) of this Section 2.14. At the request of the Board, any
person nominated by a stockholder for election as a director shall furnish to the Secretary of the
corporation that information required to be set forth in the 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 in this paragraph (b).
The chairman of the meeting shall, if the facts warrants, determine and declare at the meeting that
a nomination was not made in accordance with the procedures prescribed by these Bylaws, and if he
should so determine, he shall so declare at the meeting, and the defective nomination shall be
disregarded.
(c) Notwithstanding the foregoing provisions of this Section 2.14, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to matters set forth in this Section 2.14. Nothing in this
Section 2.14 shall be deemed to affect any rights of stockholders to request inclusion of
proposals in the corporation’s proxy statement pursuant to Rule 14a-8 under he Exch0nge Act.
2.15
ORGANIZATION
Meetings of stockholders shall be presided over by (a) the Chairman of the Board or, in the
absence thereof, (b) such person as the Chairman of the Board shall appoint or, in the absence
thereof or in the event that the Chairman of the Board shall fail to make such appointment, (c)
such person as the Chairman of the executive committee of the corporation shall appoint or, in the
absence thereof or in the event that the Chairman of the executive committee of the corporation
shall fail to make such appointment, any officer of the corporation elected by the Board. In the
absence of the Secretary of the corporation, the secretary of the meeting shall be such person as
the Chairman of the meeting appoints.
The Board shall, in advance of any meeting of stockholders, appoint one (1) or more
inspector(s), who may include individual(s) who serve the corporation in other capacities,
including without limitation as officers, employees or agents, to act at the meeting of
stockholders and make a written report thereof. The Board may designate one (1) or more persons as
alternate inspector(s) to replace any inspector, who fails to act. If no inspector or alternate
has been appointed or is able to act at a meeting of stockholders, the Chairman of the meeting
shall appoint one (1) or more
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inspector(s) to act at the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality
and according to the best of his or her ability. The inspector(s) or alternate(s) shall have the
duties prescribed pursuant to Section 231 of the General Corporate Laws of Delaware or other
applicable law.
The Board shall be entitled to make such rules or regulations for the conduct of meetings of
stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and
regulations, if any, the Chairman of the meeting shall have the right and authority to prescribe
such rules, regulations and procedures and to do all acts as, in the judgment of such Chairman, are
necessary, appropriate or convenient for the proper conduct of the meeting, including without
limitation establishing an agenda of business of the meeting, rules or regulations to maintain
order, restrictions on entry to the meeting after the time fixed for commencement thereof and the
fixing of the date and time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting (and shall announce such at the meeting).
2.16
NOTICE BY ELECTRONIC TRANSMISSION
Without limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the corporation under any provision of the
General Corporation Law of Delaware, the Certificate 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 (a) the corporation is unable to deliver by electronic
transmission two (2) consecutive notices given by the corporation in accordance with such consent,
and (b) such inability becomes known to the Secretary or an Assistant Secretary of the corporation,
the transfer agent or other person responsible for the giving of notice; provided, however, the
inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or
other action.
Notice given pursuant to the above paragraph shall be deemed given (a) if by facsimile
telecommunication, when directed to a number at which the stockholder has consented to receive
notice, (b) if by electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice, (c) if by a posting on an electronic network together
with a separate notice to the stockholder of such specific posting, upon the later of (i) such
posting, and (ii) the giving of such separate notice, and (d) if by any other form of electronic
transmission, when directed to the stockholder. An affidavit of the Secretary or Assistant
Secretary, 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.
For purposes of these Bylaws, “electronic transmission” means any form of communication, not
directly involving the physical transmission of paper, which 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. This Section 2.16 shall not apply to
Section 164 (failure to pay for stock; remedies), Section 296 (adjudication of claims; appeal),
Section 311 (revocation of voluntary dissolution), Section 312 (renewal, revival, extension
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and restoration of certificate of incorporation) or Section 324 (attachment of shares of
stock) of the General Corporation Law of Delaware.
ARTICLE III
DIRECTORS
3.1
POWERS
The business and affairs of the corporation shall be managed by or under the direction of the
Board. In addition to the power and authorities these Bylaws expressly confer upon them, the Board
may exercise all such powers of the corporation and do all such lawful acts and things as are not
required by statute, the Certificate or these Bylaws to be exercised or done by the stockholders.
3.2
NUMBER OF DIRECTORS
Subject to the rights of the holders of any Preferred Stock of the corporation to elect
additional directors under specified circumstances, the authorized number of directors of the
corporation shall be fixed from time to time exclusively by the Board pursuant to a resolution duly
adopted by a majority of the Board members then in office.
No reduction of the authorized number of directors shall have the effect of removing any
director before such director’s term of office expires.
3.3
ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as provided in the Certificate or Section 3.4 of these Bylaws, directors shall
be classified, with respect to the time for which they severally hold office, into three (3)
classes, as nearly equal in number as possible, one (1) class to be originally elected for a term
expiring at the annual meeting of stockholders to be held in 2008, another class to be originally
elected for a term expiring at the annual meeting of stockholders to be held in 2009, and another
class to be originally elected for a term expiring at the annual meeting of stockholders to be held
in 2010, with each class to hold office until its successor is duly elected and qualified. At each
succeeding annual meeting of stockholders, commencing with the first annual meeting (a) directors
elected to succeed those directors whose terms then expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after their election, with each
director to hold office until his or her successor shall have been duly elected and qualified, and
(b) if authorized by a resolution of the Board, directors may be elected to fill any vacancy on the
Board, regardless of how such vacancy shall have been created (as set forth in Section 3.4
below).
Directors need not be stockholders unless so required by the Certificate or these Bylaws,
wherein other qualifications for directors may be prescribed.
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Elections of directors at all meetings of the stockholders at which directors are to be
elected shall be by ballot and, subject to the rights of the holders of any Preferred Stock of the
corporation to elect additional directors under specified circumstances, a plurality of the votes
cast thereat shall elect directors. The ballot shall state the name of the stockholder or proxy
voting or such other information as may be required under the procedure established by the Chairman
of the meeting. If authorized by the Board, such requirement of a ballot shall be satisfied by a
ballot submitted by electronic transmission provided that any such electronic transmission must
either set forth or be submitted with information from which it can be determined that the
electronic submission was authorized.
3.4
RESIGNATION AND VACANCIES
Any director may resign at any time upon written notice or by electronic transmission to the
corporation.
Subject to the rights of the holders of any series of Preferred Stock of the corporation then
outstanding and unless the Board otherwise determines, newly created directorships resulting from
any increase in the authorized number of directors, or any vacancies on the Board resulting from
the death, resignation, retirement, disqualification, removal from office or other cause shall,
unless otherwise provided by law or resolution of the Board, be filled only by a majority vote of
the directors then in office, whether or not less than a quorum, and directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at which the term of office of the
class to which they have been elected expires.
3.5
PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The Board may hold meetings, both regular and special, either within or outside the State of
Delaware.
Unless otherwise restricted by the Certificate or these Bylaws, members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, 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
FIRST MEETINGS
The first meeting of each newly elected Board shall be held immediately after, and at the same
location as, the annual meeting of stockholders, unless the Board shall fix another time and place
and give notice thereof (or obtain waivers of notice thereof) in the manner required herein for
special meetings of directors, and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, except as provided in this
Section 3.6 and provided that a quorum shall be present.
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3.7
REGULAR MEETINGS
Regular meetings of the Board may be held without notice at such time and at such place as
shall from time to time be determined by the Board.
3.8
SPECIAL MEETINGS; NOTICE
Special meetings of the Board for any purpose(s) may be called at any time by the Chairman of
the Board, the Chief Executive Officer, the President or a majority of the members of the Board
then in office. The person(s) authorized to call special meetings of the Board may fix the place
and time of the meetings.
The Secretary shall give notice of any special meeting to each director personally or by
telephone, or sent by first-class mail, overnight mail, courier service or telegram, postage or
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) calendar days before the time of the holding of the meeting. If the notice
is delivered by telegram, overnight mail or courier, it shall be deemed adequately delivered when
the telegram is delivered to the telegraph company or the notice is delivered to the overnight mail
or courier service company at least forty-eight (48) hours before such meeting. If by facsimile
transmission, such notice shall be deemed adequately delivered when the notice is transmitted at
least twelve (12) hours before such meeting. If by telephone or hand delivery the notice shall be
given at least twelve (12) hours prior to the time set for 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.
3.9
QUORUM
At all meetings of the Board, a majority of the Whole Board (as defined below) shall
constitute a quorum for all purposes, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board, except as may be otherwise
specifically provided by statute or by the Certificate. The directors present at a duly organized
meeting may continue to transact business until adjournment notwithstanding the withdrawal of
enough directors to leave less than quorum. The term “Whole Board” shall mean the total number of
authorized directors of the corporation whether or not there exist any vacancies in previously
authorized directorships.
3.10
WAIVER OF NOTICE
Whenever notice is required to be given under any provisions of the General Corporation Law of
Delaware of the Certificate or these Bylaws, a written waiver thereof, signed by the person
entitled to notice, or a waiver by electronic transmission by the person entitled to notice,
whether
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before or after the time stated therein, 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 directors,
or members of a committee of directors, need be specified in any written waiver of notice or any
waiver by electronic transmission unless so required by the Certificate or these Bylaws.
3.11
ADJOURNED MEETING; NOTICE
If a quorum is not present at any meeting of the Board, then a majority of 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.
3.12
BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise restricted by the Certificate or these Bylaws, any action required or
permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may be, consent thereto in
writing or by electronic transmission and the writing(s) or electronic transmission(s) are filed
with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if
the minutes are maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
3.13
FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the Certificate or these Bylaws, the Board shall have the
authority to fix the compensation of directors.
3.14
REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, the Certificate or these Bylaws, any director or the
entire Board may be removed, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
Effective upon the closing of a firm commitment underwritten public offering of Common Stock
of the Corporation and subject to the rights of the holders of any series of Preferred Stock of the
corporation then outstanding, unless otherwise restricted by statute, the Certificate or these
Bylaws, any director, or all of the directors, may be removed from the Board, but only for cause,
but only by the affirmative vote of the holders of at least a majority of the voting power of all
the then outstanding shares of capital stock of the corporation then entitled to vote at the
election of directors, voting together as a single class.
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For purposes of the foregoing paragraph, “cause” shall mean (i) continued willful failure to
perform the obligations of a director, (ii) gross negligence by the director, (iii) engaging in
transactions that defraud the corporation, (iv) fraud or intentional misrepresentation, including
falsifying use of funds and intentional misstatements made in financial statements, books, records
or reports to stockholders or governmental agencies, (v) material violation of any agreement
between the director and the corporation, (vi) knowingly causing the corporation to commit
violations of applicable law (including by failure to act), (vii) acts of moral turpitude or (viii)
conviction of a felony.
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 may from time to time, by resolution passed by a majority of the Whole Board,
designate one (1) or more committees of the Board, with such lawfully delegable powers and duties
as it thereby confers, with each committee to consist of one (1) or more of the directors of the
corporation. 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. In
the absence or disqualification of a member of a committee, the member(s) thereof present at any
meeting and not disqualified from voting, whether or not such member(s) constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the place of any such
absent or disqualified member.
4.2
COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report the same to the Board
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 Article III of these Bylaws, Section 3.5 (place of meetings
and meetings by telephone), Section 3.7 (regular meetings), Section 3.8 (special
meetings and notice), Section 3.9 (quorum), Section 3.10 (waiver of notice),
Section 3.11 (adjournment and notice of adjournment), and Section 3.12 (action
without a meeting), with such changes in the context of those Bylaws as are necessary to substitute
the committee and its members for the Board and its members; provided, however, that the time of
regular and special meetings of committees may also be called by resolution of the Board. The
Board may adopt rules for the government of any committee not inconsistent with the provisions of
these Bylaws.
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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, a Chairman of the Board, a Vice Chairman of the Board, a
Chief Executive Officer, a Chief Financial Officer, a Treasurer, one or more Vice Presidents,
Assistant Vice Presidents, Assistant Secretaries, and Assistant Treasurers, and any 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.
5.2
ELECTION OF OFFICERS
The officers of the corporation, except such officers as may be appointed in accordance with
the provisions of Section 5.3 of these Bylaws, shall be chosen by the Board, which shall
consider such subject at its first meeting after every annual meeting of stockholders, subject to
the rights, if any, of an officer under any contract of employment. Each officer shall hold office
until his or her successor is elected and qualified or until his or her earlier resignation or
removal. A failure to elect officers shall not dissolve or otherwise affect the corporation.
5.3
SUBORDINATE OFFICERS
The Board may appoint, or empower the Chief Executive Officer or, in the absence of a Chief
Executive Officer, the President, to appoint, such other officers as the business of the
corporation may require, each of whom shall hold office for such period, have such authority, and
perform such duties as are provided in these Bylaws or as the Board may from time to time
determine.
5.4
REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under contract of employment, any officer may be
removed, either with or without cause, by an affirmative vote of the majority of the Board at any
regular or special meeting of the Board.
Any 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. Unless otherwise specified in such 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 officer is a party.
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5.5
VACANCIES IN OFFICES
Any vacancy occurring in any office of the corporation shall be filled by the Board.
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 and exercise and perform such other powers and duties as may from time to
time be assigned to him or her by the Board or as may be prescribed by these Bylaws. If there is
no Chief Executive Officer or President, then the Chairman of the Board shall also be the Chief
Executive Officer of the corporation and as such shall also have the powers and duties prescribed
in Section 5.7 of these Bylaws.
5.7
CHIEF EXECUTIVE OFFICER
Subject to such supervisory powers, if any, as the Board may give to the Chairman of the
Board, the Chief Executive Officer, if any, shall, subject to the control of the Board, have
general supervision, direction, and control of the business and affairs of the corporation and
shall report directly to the Board. All other officers, officials, employees and agents shall
report directly or indirectly to the Chief Executive Officer. The Chief Executive Officer shall
see that all orders and resolutions of the Board are carried into effect. The Chief Executive
Officer shall serve as chairperson of and preside at all meetings of the stockholders. In the
absence of a Chairman of the Board, the Chief Executive Officer shall preside at all meetings of
the Board.
5.8
PRESIDENT
In the absence or disability of the Chief Executive Officer, the President shall perform all
the duties of the Chief Executive Officer. When acting as the Chief Executive Officer, the
President shall have all the powers of, and be subject to all the restrictions upon, the Chief
Executive Officer. The President shall have such other powers and perform such other duties as
from time to time may be prescribed for him or her by the Board, these Bylaws, the Chief Executive
Officer or the Chairman of the Board.
5.9
VICE PRESIDENT
In the absence or disability of the President, the Vice President(s), if any, in order of
their rank as fixed by the Board or, if not ranked, a Vice President designated by the Board, 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 President(s) shall have such other
powers and perform such other duties as from time to time may be prescribed for them respectively
by the Board, these Bylaws, the Chairman of the Board, the Chief Executive Officer or, in the
absence of a Chief Executive Officer, the President.
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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 may direct, a book of minutes of all meetings and
actions 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, 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. Such share register shall be the “stock ledger” for
purposes of Section 2.13 of these Bylaws.
The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and
of the Board, or committee of the Board, required to be given by law or by these Bylaws. He or she
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 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 and retained earnings.
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 or Chief
Executive Officer. The Chief Financial Officer shall disburse the funds of the corporation as may
be ordered by the Board, shall render to the Board and Chief Executive Officer, or in the absence
of a Chief Executive Officer the President, whenever they request, 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 or
these Bylaws. In lieu of any contrary resolution duly adopted by the Board, the Chief Financial
Officer shall be the Treasurer of the corporation.
5.12
ASSISTANT SECRETARY
The Assistant Secretary(ies), if any, in the order determined by the Board (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
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Secretary and shall perform such other duties and have such other powers as the Board may from
time to time prescribe.
5.13
ASSISTANT TREASURER
The Assistant Treasurer(s), if any, in the order determined by the Board (or if there be no
such determination, then in the order of their election), shall, in the absence of the Chief
Financial Officer or in the event of his or her inability or refusal to act, perform the duties and
exercise the powers of the Chief Financial Officer and shall perform such other duties and have
such other powers as the Board may from time to time prescribe.
5.14
AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing authority and duties, 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.
ARTICLE VI
INDEMNITY
6.1
RIGHT TO INDEMNIFICATION IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE
BY OR IN THE RIGHTS OF THE CORPORATION
Subject to Section 6.3 of this Article VI, the corporation shall indemnify 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
(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 or officer of the corporation, or is or was a director or officer of the
corporation serving at the request of the corporation as a director or officer, employee or agent
of another corporation, partnership, joint venture, trust, employee benefit plan 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 action, suit or
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 action, suit or 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.
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6.2
RIGHT TO INDEMNIFICATION IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE
RIGHT OF THE CORPORATION
Subject to Section 6.3 of this Article VI, the corporation shall indemnify 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 is or
was a director or officer of the corporation serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan 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.
6.3
AUTHORIZATION OF INDEMNIFICATION
Any indemnification under this Article VI (unless ordered by a court) shall be made by
the corporation only as authorized in the specific case upon a determination that indemnification
of the director or officer is proper in the circumstances because such person has met the
applicable standard of conduct set forth in Section 6.1 or Section 6.2 of this
Article VI, as the case may be. Such determination shall be made, with respect to a person
who is a director or officer at the time of such determination, (a) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though less than a quorum,
or (b) by a committee of such directors designated by a majority vote of such directors, even
though less than a quorum, or (c) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion or (d) by the stockholders (but only if a
majority of the directors who are not parties to such action, suit or proceeding, if they
constitute a quorum of the board of directors, presents the issue of entitlement to indemnification
to the stockholders for their determination). Any person or persons having the authority to act on
the matter on behalf of the corporation shall make such determination, with respect to former
directors and officers. To the extent, however, 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 above, 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, without the necessity of authorization in the specific case.
6.4
GOOD FAITH DEFINED
For purposes of any determination under Section 6.3 of this Article VI, a
person shall be deemed to have acted in good faith and in a manner such person reasonably believed
to be in or not
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opposed to the best interests of the corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe such person’s conduct was unlawful, if such
person’s action is based on the records or books of account of the corporation or another
enterprise, or on information supplied to such person by the officers of the corporation or another
enterprise in the course of their duties, or on the advice of legal counsel for the corporation or
another enterprise or on information or records given or reports made to the corporation or another
enterprise by an independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the corporation or another enterprise. The term “another
enterprise” as used in this Section 6.4 shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise of which such person
is or was serving at the request of the corporation as a director, officer, employee or agent. The
provisions of this Section 6.4 shall not be deemed to be exclusive or to limit in any way
the circumstances in which a person may be deemed to have met the applicable standard of conduct
set forth in Section 6.1 or Section 6.2 of this Article VI, as the case may
be.
6.5
INDEMNIFICATION BY A COURT
Notwithstanding any contrary determination in the specific case under Section 6.3 of
this Article VI, and not withstanding the absence of any determination thereunder, any
director or officer may apply to the Court of Chancery in the State of Delaware (but in no event
later than forty-five (45) days after written receipt of the written request by said director or
officer) for indemnification to the extent otherwise permissible under Section 6.1 and
Section 6.2 of this Article VI. The basis of such indemnification by a court shall
be a determination by such court that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standards of conduct set forth in
Section 6.1 or Section 6.2 of this Article VI, as the case may be. Neither
a contrary determination in the specific case under Section 6.3 of this Article VI
nor the absence of any determination thereunder shall be a defense to such application or create a
presumption that the director or officer seeking indemnification has not met any applicable
standard of conduct. Notice of any application for indemnification pursuant to this Section
6.5 shall be given to the corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.
6.6
EXPENSES PAYABLE IN ADVANCE
Expenses incurred by a director or officer in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be determined that such person
is not entitled to be indemnified by the corporation as authorized in this Article VI.
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6.7
NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
The indemnification and advancement of expenses provided by or granted pursuant to this
Article VI shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the Certificate, any 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, it being
the policy of the corporation that indemnification of the persons specified in Section 6.1
and Section 6.2 of this Article VI shall be made to the fullest extent permitted by
law. The provisions of this Article VI shall not be deemed to preclude the indemnification
of any person who is not specified in Section 6.1 or Section 6.2 of this
Article VI but whom the corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of Delaware, or otherwise.
6.8
INSURANCE
The corporation may purchase and maintain insurance on behalf of any person who is or was a
director or officer of the corporation, or is or was a director or officer of the corporation
serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan 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 or
the obligation to indemnify such person against such liability under the provisions of this
Article VI.
6.9
CERTAIN DEFINITIONS
For purposes of this Article VI, 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 or officers, so that any person who
is or was a director or officer of such constituent corporation, or is or was a director or officer
of such constituent corporation serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, shall stand in the same position under the provisions of
this Article VI 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 VI, 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 or officer 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 VI.
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6.10
SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
The indemnification and advancement of expenses provided by, or granted pursuant to, this
Article VI shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person.
6.11
LIMITATION ON INDEMNIFICATION
Notwithstanding anything contained in this Article VI to the contrary, except for
proceedings to enforce rights to indemnification (which shall be governed by Section 6.5
hereof), the corporation shall not be obligated to indemnify any director or officer in connection
with a proceeding (or part thereof) initiated by such person unless such proceeding (or part
thereof) was authorized or consented to by the board of directors of the corporation.
6.12
INDEMNIFICATION OF EMPLOYEES AND AGENTS
The corporation may, to the extent authorized from time to time by the board of directors,
provide rights to indemnification and to the advancement of expenses to employees and agents of the
corporation similar to those conferred in this Article VI to directors and officers of the
corporation.
ARTICLE VII
RECORDS AND REPORTS
7.1
MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at such place or places as
designated by the Board, keep a record of its stockholders listing their names and addresses and
the number and class of shares held by each stockholder, a copy of these Bylaws, as may be amended
to date, minute books, accounting books and other records.
Any such records maintained by the corporation may be kept on, or by means of, or be in the
form of, any information storage device or method, provided that the records so kept can be
converted into clearly legible paper form within a reasonable time. The corporation shall so
convert any records so kept upon the request of any person entitled to inspect such records
pursuant to the provisions of the General Corporation Law of Delaware. When records are kept in
such manner, a clearly legible paper form produced from or by means of the information storage
device or method shall be admissible in evidence, and accepted for all other purposes, to the same
extent as an original paper form accurately portrays the record.
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
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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. The Court of Chancery is hereby vested with the exclusive jurisdiction to
determine whether a director is entitled to the inspection sought. The Court may summarily order
the corporation to permit the director to inspect any and all books and records, the stock ledger,
and the stock list and to make copies or extracts therefrom. The Court may, in its discretion,
prescribe any limitations or conditions with reference to the inspection, or award such other and
further relief as the Court may deem just and proper.
7.3
REPRESENTATION OF SHARES OF OTHER CORPORATIONS
Unless otherwise directed by the Board, the Chief Executive Officer, the President, or any
other person authorized by the President, is authorized to vote, represent, and exercise on behalf
of the corporation all rights incident to any and all shares of any other corporation(s) standing
in the name of the 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.
ARTICLE VIII
GENERAL MATTERS
8.1
CHECKS
From time to time, the Board 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.
The Board, 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 or within the agency power of an officer, no
officer,
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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.
8.3
STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of a corporation shall be represented by certificates, provided that the Board may
provide by resolution 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, 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 of the Board or Chief Executive Officer, or the President or
Vice-President, and by the Chief Financial Officer 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 he were such
officer, transfer agent or registrar at the date of issue.
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, 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.
8.4
SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one (1) class of stock or more than one
(1) 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.
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8.5
LOST CERTIFICATES
Except as provided in this Section 8.5, 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, or may require any transfer agent, if any, for the
shares to require, the owner of the lost, stolen or destroyed certificate, or his, her or its 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.
8.6
CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of construction and
definitions in the Delaware General Corporation Law shall govern the construction of these Bylaws.
Without limiting the generality of this provision, the singular number includes the plural, the
plural number includes the singular, and the term “person” includes both a corporation and a
natural person.
8.7
DIVIDENDS
The directors of the corporation, subject to any restrictions contained in the Certificate,
may declare and pay dividends upon the shares of its capital stock pursuant to the General
Corporation Law of Delaware. Dividends may be paid in cash, in property or in shares of the
corporation’s capital stock.
The directors of the corporation 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.
8.8
FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the Board and may be
changed by resolution of the Board.
8.9
SEAL
This corporation may have a corporate seal, which may be adopted or altered at the pleasure of
the Board, and may use the same by causing it or a facsimile thereof, to be impressed or affixed or
in any other manner reproduced.
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8.10
TRANSFER OF STOCK
Upon surrender to the corporation or the transfer agent of the corporation, if any, of a
certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation
or authority to transfer (as determined by legal counsel to the corporation), it shall be the duty
of the corporation, as the corporation may so instruct its transfer agent, if any, to issue a new
certificate to the person entitled thereto, cancel the old certificate, and record the transaction
in its books.
8.11
REGISTERED STOCKHOLDERS
The corporation shall be entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends and to vote as such owner, shall be entitled
to hold liable for calls and assessments the person registered on its books as the owner of shares,
and 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 IX
AMENDMENTS
The 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, confer the power to
adopt, amend or repeal bylaws upon the Board. The fact that such power has been so conferred upon
the Board shall not divest the stockholders of the power, nor limit their power to adopt, amend or
repeal bylaws.
Effective upon the closing of a firm commitment underwritten public offering of Common Stock
of the Corporation and notwithstanding the foregoing, in addition to any vote of the holders of any
class or series of stock of the corporation required by law or by the Certificate, the amendment or
repeal of all or any portion of Article II, Section 3.2 (number of directors),
Section 3.3 (election, qualification and term of office of directors), Section 3.4
(resignation and vacancies), Section 3.14 (removal of directors), Article VI or
this Article IX by the stockholders of the corporation shall require the affirmative vote
of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of the
then outstanding shares of voting stock entitled to vote generally in the election of directors,
voting together as a single class.