Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 99 509K
2: EX-3.1 Amended & Restated Certificate 7 30K
3: EX-3.2 Amended & Restated Bylaws 21 98K
4: EX-3.3 Amended & Restated Certification of Incorporation 20 85K
5: EX-3.4 Certificate of Correction 2 13K
6: EX-3.5 Bylaws of Replicase, Inc. 13 60K
7: EX-4.2 Registration Rights Agreement, Date June 22, 1998 16 68K
8: EX-4.3 Amended & Restated Reg. 15 75K
9: EX-4.4 Warrant Agreement, Dated July 12, 1999 11 66K
10: EX-4.5 Warrant Agreement, Dated Oct. 27, 1998 11 69K
11: EX-4.6 Warrant Agreement, Dated Oct. 27, 1998 12 69K
12: EX-4.7 Warrant Agreement, Dated Oct. 27, 1998 12 68K
13: EX-4.8 Letter of Comdisco 2± 13K
14: EX-4.9 Warrant Agreement to Purchase (Excite) 12 58K
15: EX-10.1 Registrant's 1998 Stock Option Plan 25 97K
24: EX-10.10 Employment Agreement, Brian M. Beattie 5 27K
25: EX-10.11 Employment Agreement, Jim Hilbert 5 25K
26: EX-10.12 Employment Agreement, Lucille Hoger 5 25K
27: EX-10.14 Sublease Agreement 11 51K
28: EX-10.15 Enterprise License Agreement, Dated May 27, 1999 11 55K
29: EX-10.16 Amend. #1 to Enterprise License Agreement 3 24K
16: EX-10.2 Registrant's 2000 Omnibus Equity Incentive Plan 39 153K
17: EX-10.3 Registrant's 2000 Employee Stock Plan 12 58K
18: EX-10.4 Form of Directors' & Officers' Indemnification 7 40K
19: EX-10.5 Employment Agreement, Tony Rodoni 3 18K
20: EX-10.6 Employment Letter, Michael O'Rourke 4 20K
21: EX-10.7 Employment Agreement, Radha R. Basu 5 27K
22: EX-10.8 Employment Letter, Scott Dale 8 38K
23: EX-10.9 Employment Agreement, Cadir Lee 8 38K
30: EX-23.1 Consent of Ernst & Young LLP 1 10K
31: EX-27.1 Financial Data Schedule 2 12K
EXHIBIT 3.2
AMENDED AND RESTATED
B Y L A W S
OF
SUPPORT.COM, INC.
(a Delaware corporation)
Adopted effective _______ __, 2000
TABLE OF CONTENTS
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ARTICLE I Offices..................................................................................... 1
Section 1. Registered Office.............................................................. 1
Section 2. Other Offices.................................................................. 1
ARTICLE II Meetings of Stockholders................................................................... 1
Section 1. Annual Meetings................................................................ 1
Section 2. Special Meetings............................................................... 2
Section 3. Notice of Meeting.............................................................. 2
Section 4. List of Stockholders........................................................... 2
Section 5. Quorum......................................................................... 2
Section 6. Adjournments................................................................... 3
Section 7. Voting......................................................................... 3
Section 8. Proxies........................................................................ 3
Section 9. Judges of Election............................................................. 3
Section 10. Written Consent............................................................... 3
Section 11. Waiver of Notice.............................................................. 3
ARTICLE III Board of Directors........................................................................ 4
Section 1. Number......................................................................... 4
Section 2. Election and Term of Office.................................................... 4
Section 3. Nominations.................................................................... 4
Section 4. Vacancies and Additional Directorships......................................... 5
Section 5. Powers......................................................................... 5
Section 6. Resignation and Removal of Directors........................................... 5
Section 7. Compensation of Directors...................................................... 5
Section 8. Chairman of the Board.......................................................... 5
ARTICLE IV Meeting of the Board of Directors.......................................................... 5
Section 1. Place.......................................................................... 5
Section 2. Regular Meetings............................................................... 6
Section 3. Special Meetings............................................................... 6
Section 4. Quorum......................................................................... 6
Section 5. Adjourned Meetings............................................................. 6
Section 6. Written Consent................................................................ 6
Section 7. Communications Equipment....................................................... 6
Section 8. Waiver of Notice............................................................... 7
ARTICLE V Committees of the Board..................................................................... 7
Section 1. Designation, Power, Alternate Members and Term of Office....................... 7
Section 2. Meetings, Notices and Records.................................................. 7
Section 3. Quorum and Manner of Acting.................................................... 8
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Section 4. Resignations................................................................... 8
Section 5. Removal........................................................................ 8
Section 6. Vacancies...................................................................... 8
Section 7. Compensation................................................................... 8
ARTICLE VI Officers................................................................................... 8
Section 1. Officers....................................................................... 8
Section 2. Duties......................................................................... 9
Section 3. Resignations................................................................... 9
Section 4. Removal........................................................................ 9
Section 5. Vacancies...................................................................... 9
Section 6. Chief Executive Officer........................................................ 9
Section 7. President...................................................................... 9
Section 8. Vice President................................................................. 9
Section 9. Secretary...................................................................... 10
Section 10. Assistant Secretaries......................................................... 10
Section 11. Chief Financial Officer and Treasurer......................................... 10
Section 12. Assistant Treasurers.......................................................... 11
Section 13. Salaries...................................................................... 11
ARTICLE VII Certificates of Stock..................................................................... 11
Section 1. Stock Certificates............................................................. 11
Section 2. Books of Account and Record of Stockholders.................................... 11
Section 3. Transfers of Shares............................................................ 12
Section 4. Regulations.................................................................... 12
Section 5. Lost, Stolen or Destroyed Certificates......................................... 12
Section 6. Stockholder"s Right of Inspection.............................................. 12
ARTICLE VIII Deposit of Corporate Funds............................................................... 13
Section 1. Borrowing...................................................................... 13
Section 2. Deposits....................................................................... 13
Section 3. Checks, Drafts, Etc............................................................ 13
ARTICLE IX Record Dates............................................................................... 13
ARTICLE X Dividends................................................................................... 14
ARTICLE XI Fiscal Year................................................................................ 14
ARTICLE XII Indemnification........................................................................... 14
Section 1. Right to Indemnification....................................................... 14
Section 2. Right of Claimant to Bring Suit................................................ 15
Section 3. Non-Exclusivity of Rights...................................................... 15
Section 4. Insurance...................................................................... 15
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Section 5. Severability................................................................... 16
Section 6. Intent of Article.............................................................. 16
ARTICLE XIII Corporate Seal........................................................................... 16
ARTICLE XIV Amendments................................................................................ 16
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BYLAWS
OF
SUPPORT.COM, INC.
(a Delaware corporation)
ARTICLE I
---------
Offices
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Section 1. Registered Office. The registered office of the Corporation
-----------------
within the State of Delaware is located at 30 Old Rudnick Lane in the City of
Dover, County of Kent, in the State of Delaware and CorpAmerica, Inc. is the
registered agent.
Section 2. Other Offices. The Corporation may also have other offices,
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either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II
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Meetings of Stockholders
------------------------
Section 1. Annual Meetings. Annual meetings of stockholders shall be held
---------------
at such date and time as shall be designated from time to time by the Board of
Directors and stated in the notice of meeting. At the annual meeting the
stockholders shall elect by a plurality vote the number of Directors equal to
the number of Directors of the class whose term expires at such meetings (or, if
fewer, the number of Directors properly nominated and qualified for election) to
hold office until the third succeeding annual meeting of stockholders after
their election.
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 specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, otherwise properly brought before the meeting by or at the direction
of the Board of Directors, or otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements, 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 fifty (50) days nor more than seventy-five (75) days prior to the meeting;
provided, however, that in the event that less than sixty-five (65) days' notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 15th day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
was made. A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be
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brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and record address of the stockholder
proposing such business, (c) the class and number of shares of the Corporation
which are beneficially owned by the stockholder, (d) any material interest of
the stockholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set
forth in this Section 1 by any stockholder of any business properly brought
before the annual meeting in accordance with said procedure.
The Chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section, and if he or she
should so determine, he or she shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Section 2. Special Meetings. Special meetings of the stockholders for any
----------------
proper purpose or purposes may be called only by the Chief Executive Officer of
the Corporation or by a resolution adopted by the affirmative vote of a majority
of the Board of Directors.
Section 3. Notice of Meeting. Notice, signed by the Chief Executive
-----------------
Officer, the President, any Vice President, the Secretary or an Assistant
Secretary, of every annual or special meeting of stockholders stating the
purpose or purposes for which the meeting is called, and the date and time when,
and the place where it is to be held, shall be prepared in writing and
personally delivered or mailed, postage prepaid by first class mail, to each
stockholder entitled to vote at such meeting not less than ten (10) nor more
than sixty (60) days before the meeting, except as otherwise provided by
statute. If mailed, such notice shall be directed to a stockholder at his or her
address as it shall appear on the stock record book of the Corporation, unless
the stockholder shall have filed with the Secretary a written request that
notices intended for him or her be mailed to some other address, in which case
it shall be mailed to the address designated in such request. Notice shall be
deemed given when personally delivered or deposited to the United States mail,
as the case may be; provided, however, that such notice may also be given by
telegram, cablegram, radiogram or other means of electronically transmitted
written copy and in such case shall be deemed given when ordered or, if a
delayed delivery is ordered, as of such delayed delivery time, or when
transmitted, as the case may be.
Section 4. List of Stockholders. A complete list of the stockholders
-------------------
entitled to vote at each meeting of stockholders, arranged in alphabetical order
and showing the address of each such stockholder and the number of shares
registered in the name of each such stockholder, shall be open to the
examination of any stockholder, for any purpose germane to such meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of such meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting and during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 5. Quorum. The presence at any meeting, in person or by proxy, of
------
the holders of record of a majority of the shares then issued and outstanding
and entitled to vote shall be
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necessary and sufficient to constitute a quorum for the transaction of business,
except where otherwise provided by statute.
Section 6. Adjournments. In the absence of a quorum, stockholders
------------
representing a majority of the shares then issued and outstanding and entitled
to vote, present in person or by proxy, or, if no stockholder entitled to vote
is present in person or by proxy, any officer entitled to preside at or act as
secretary of such meeting, may adjourn the meeting from time to time without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting originally noticed. 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.
Section 7. Voting. When a quorum is present at any meeting, the holders of
------
a majority of the shares of the Corporation, present in person or by proxy,
shall decide any question brought before the meeting, unless the question is one
upon which by express provision of the statutes or of the certificate of
incorporation a different vote is required in which case such express provision
shall govern and control the decision of such question.
Section 8. Proxies. Any stockholders entitled to vote may vote by proxy,
-------
provided that the instrument authorizing such proxy to act shall have been
executed in writing (which shall include telegraphing, cabling or other means of
electronically transmitted written copy) by the stockholder himself or herself
or by his or her duly authorized attorney-in-fact. No proxy shall be voted or
acted upon after three (3) years from its date, unless the proxy provides for a
longer period.
Section 9. Judges of Election. The Board of Directors may appoint judges
------------------
of election to serve at any election of directors and at balloting on any other
matter that may properly come before a meeting of stockholders. If no such
appointment shall be made, or if any of the judges so appointed shall fail to
attend, or refuse or be unable to serve, then such appointment may be made by
the presiding officer of the meeting at the meeting.
Section 10. Written Consent. No action required or permitted to be taken at
---------------
any annual or special meeting of the stockholders of the Corporation may be
taken without a meeting and the power of the stockholders to consent in writing,
without a meeting, to the taking of any action is specifically denied.
Section 11. Waiver of Notice. Notice of any meeting need not be given to
----------------
any stockholder who shall attend such meeting in person or shall waive notice
thereof, before or after such meeting, in writing or by telegram, radiogram,
cablegram or other means of electronically transmitted written copy.
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ARTICLE III
-----------
Board of Directors
------------------
Section 1. Number. The number of directors which shall constitute the whole
------
Board of Directors shall be fixed at seven (7). Thereafter, the number of
directors which shall constitute the whole Board of Directors shall be fixed
from time to time by resolution of the Board of Directors or stockholders at the
annual meeting or any special meeting called for that purpose.
Section 2. Election and Term of Office. Directors shall be elected at the
---------------------------
annual meeting of the stockholders except as provided in Section 4 of this
Article. Each Director (whether elected at an annual meeting or to fill a
vacancy or otherwise) shall continue in office until a successor shall have been
elected and qualified or until his or her death, resignation or removal in the
manner hereinafter provided, whichever shall first occur.
Section 3. Nominations. Subject to the rights of holders of any class or
-----------
series of stock having a preference over the common stock as to dividends or
upon liquidation, nominations for election to the Board of Directors of the
Corporation at a meeting of stockholders may be made on behalf of the Board by
the Nominating Committee appointed by the Board, or by any stockholder of the
Corporation entitled to vote for the election of directors at such meeting. Such
nominations, other than those made by the Nominating Committee on behalf of the
Board, shall be made by notice in writing delivered or mailed by first class
United States mail, postage prepaid, to the Secretary or Assistant Secretary of
the Corporation, and received by him or her not less than one hundred twenty
(120) days prior to any meeting of stockholders called for the election of
directors; provided, however, that if less than one hundred (100) days notice of
the meeting is given to stockholders, such nomination shall have been mailed or
delivered to the Secretary or the Assistant Secretary of the Corporation not
later than the close of business on the seventh (7th) day following the day on
which the notice of meeting was mailed. Such notice shall set forth as to each
proposed nominee who is not an incumbent director (a) the name, age, business
address and, if known, residence address of each nominee proposed in such
notice, (b) the principal occupation or employment of each such nominee, (c) the
number of shares of stock of the Corporation which are beneficially owned by
each such nominee and by the nominating stockholder, and (d) any other
information concerning the nominee that must be disclosed of nominees in proxy
solicitations regulated by Regulation 14A of the Securities Exchange Act of
1934, as amended.
The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he or
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she should so determine, he or she shall so declare to the meeting and the
defective nomination shall be disregarded.
Section 4. Vacancies and Additional Directorships. If any vacancy shall
--------------------------------------
occur among the directors by reason of death, resignation, or removal, or as the
result of an increase in the number of directorships, the directors then in
office shall continue to act and may fill any such vacancy by a vote of the
majority of directors then in office, though less than a quorum, and each
director so chosen shall hold office until the next annual election at which the
term of the class to which he or she has been elected expires and until his or
her successor shall be duly elected and shall qualify, or until his or her
earlier death, resignation or removal.
Section 5. Powers. The business of the Corporation shall be managed by its
------
Board of Directors, which may exercise all powers of the Corporation and do all
lawful acts and things as are not by law or by the Certificate of Incorporation
or these Bylaws reserved to the stockholders.
Section 6. Resignation and Removal of Directors. Any director may resign at
------------------------------------
any time by giving written notice of such resignation to the Board of Directors
or the Chief Executive Officer. Any such resignation shall take effect at the
time specified therein or, if no time be specified, upon receipt thereof by the
Board of Directors or one of the above named officers; and, unless specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. Any director or the entire Board of Directors may be removed, but
only for cause, by the holders of a majority of the shares then entitled to vote
at an election of directors, unless otherwise specified by law or the Restated
Certificate of Incorporation. Any director or the entire Board of Directors may
be removed without cause, by the holders of sixty-six and two-thirds percent (66
2/3%) of the shares then entitled to vote at an election of directors, unless
otherwise specified by law or the Restated Certificate of Incorporation.
Section 7. Compensation of Directors. Directors shall receive such
-------------------------
reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 8. Chairman of the Board. The Chairman of the Board of Directors,
---------------------
if there be one, shall perform such duties as from time to time may be assigned
to him or her by the Board of Directors.
ARTICLE IV
----------
Meeting of the Board of Directors
---------------------------------
Section 1. Place. The Board of Directors of the Corporation may hold
-----
meetings, both regular and special, either within or without the State of
Delaware.
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Section 2. Regular Meetings. The Board of Directors by resolution may
----------------
provide for the holding of regular meetings and may fix the times and places at
which such meetings shall be held. Notice of regular meetings shall not be
required to be given, provided that whenever the time or place of regular
meetings shall be fixed or changed, notice of such action shall be mailed
promptly to each Director who shall not have been present at the meeting at
which such action was taken, addressed to him or her at his or her residence or
usual place of business, unless he or she shall have filed with the Secretary a
written request that notices intended for him or her be mailed to some other
address, in which case it shall be mailed to the address designated in such
request.
Section 3. Special Meetings. Special meetings of the Board of Directors may
----------------
be called by the Chief Executive Officer and shall be called by the Chief
Executive Officer at the written request of any two (2) directors. Except as
otherwise required by statute, notice of each special meeting shall be given to
each director, if by mail, when addressed to him or her at his or her residence
or usual place of business, unless he or she shall have filed with the Secretary
a written request that notices intended for him or her be mailed to some other
address, in which case it shall be mailed to the address designated in such
request, on at least two (2) days' notice prior to the time of the meeting, or
shall be sent to him or her at such place by telegram, radiogram or cablegram,
or other electronic means, or delivered to him or her personally, not later than
four (4) hours before the time the meeting is to be held. Such notice shall
state the time and place of such meeting, but need not state the purposes
thereof, unless otherwise required by statute, the Certificate of Incorporation
of the Corporation or these Bylaws.
Section 4. Quorum. At any meeting of the Board of Directors a majority of
------
the whole Board of Directors shall constitute a quorum for the transaction of
business, and the act of the majority of those present at any meeting at which a
quorum is present shall be sufficient for the act of the Board of Directors,
except as may be otherwise specifically provided by law or by the Certificate of
Incorporation.
Section 5. Adjournment of Meetings. If a quorum shall not be present at a
-----------------------
meeting of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, until a quorum shall be present. Four (4) hours
notice of any such adjournment shall be given personally to each director who
was not present at the meeting at which such adjournment was taken and, unless
announced at the meeting, to the other directors; provided, that two (2) days'
notice shall be given if notice is given by mail.
Section 6. Written Consent. Any action required or permitted to be taken at
---------------
any meeting of the Board of Directors may be taken without a meeting if all the
members of the Board consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of the Board of Directors.
Section 7. Communications Equipment. Any one or more members of the Board
------------------------
of Directors may participate in any meeting of the Board by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation by such
means shall be constitute presence in person at such meeting.
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Section 8. Waiver of Notice. Notice of any meeting need not be given to any
----------------
director who shall attend such meeting in person or shall waive notice thereof,
before or after such meeting, in writing or by telegram, radiogram or cablegram
or other means of electronically transmitted written copy.
ARTICLE V
---------
Committees of the Board
-----------------------
Section 1. Designation, Power, Alternate Members and Term of Office. The
--------------------------------------------------------
Board of Directors may, by resolution passed by a majority of the whole Board of
Directors, designate one (1) or more committees. Each such committee shall
consist of one (1) or more of the directors of the Corporation. Any such
committee, to the extent provided in such resolution, shall have and may
exercise the power 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 which may require it. The Board of Directors may
designate one (1) or more directors as alternate members of any committee who,
in the order specified by the Board of Directors, may replace any absent or
disqualified member at any meeting of the committee. The term of office of the
members of each committee shall be as fixed from time to time by the Board,
subject to the term of office of the directors and these Bylaws; provided,
however, that any committee member who ceases to be a member of the Board of
Directors shall ipso facto cease to be a committee member. Each committee shall
appoint a secretary, who may be the Secretary or an Assistant Secretary of the
Corporation.
Section 2. Meeting, Notices and Records. Each committee may provide for the
----------------------------
holding of regular meetings, with or without notice, and a majority of the
members of any such committee may fix the time, place and procedure for any such
meeting. Special meetings of each committee shall be held upon call by or at the
direction of its chairman or, if there be no chairman, by or at the direction of
any one (1) of its members, at the time and place specified in the respective
notices or waivers of notice thereof. Notice of each special meeting of a
committee shall be mailed to each member of such committee, addressed to him or
her at his or her residence or usual place of business, unless he or she shall
have filed with the Secretary a written request that notices intended for him or
her be mailed to some other address, in which case it shall be mailed to the
address designated in such request, at least two (2) days before the day on
which the meeting is to be held, or shall be sent by telegram, radiogram or
cablegram, or other means of electronically transmitted written copy, addressed
to him or her at such place, or telephoned or delivered to him or her
personally, not later than four (4) hours before the time the meeting is to be
held. Notice of any meeting of a committee need not be given to any member
thereof who shall attend the meeting in person or who shall waive notice thereof
by telegram, radiogram, cablegram or other means of electronically transmitted
written copy. Notice of any adjourned meeting need not be given. Each committee
shall keep a record of its proceedings.
Each committee may meet and transact any and all business delegated to that
committee by the Board of Directors by means of a conference telephone or
similar communications equipment provided that all persons participating in the
meeting are able to hear and
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communicate with each other. Participation in a meeting by means of conference
telephone or similar communication shall constitute presence in person at such
meeting.
Section 3. Quorum and Manner of Acting. At each meeting of any committee
---------------------------
the presence of a majority of its members then in office shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the act
of a majority of the members present at any meeting at which a quorum is present
shall be the act of such committee; in the absence of a quorum, a majority of
the members present at the time and place of any meeting may adjourn the meeting
from time to time until a quorum shall be present. Subject to the foregoing and
other provisions of these Bylaws and except as otherwise determined by the Board
of Directors, each committee may make rules for the conduct of its business. Any
determination made in writing and signed by all the members of such committee
shall be as effective as if made by such committee at a meeting.
Section 4. Resignations. Any member of a committee may resign at any time
------------
by giving written notice of such resignation to the Board of Directors or the
Chief Executive Officer of the Corporation. Unless otherwise specified in such
notice, such resignation shall take effect upon receipt thereof by the Board of
Directors or any such officer.
Section 5. Removal. Any member of any committee may be removed at any time
-------
by the affirmative vote of a majority of the whole Board of Directors with or
without cause.
Section 6. Vacancies. If any vacancy shall occur in any committee by
----------
reason of death, resignation, disqualification, removal or otherwise, the
remaining members of such committee, though less than a quorum, shall continue
to act until such vacancy is filled by the Board of Directors.
Section 7. Compensation. Committee members shall receive such reasonable
------------
compensation for their services as such, whether in the form of salary or a
fixed fee for attendance at meetings, with reasonable expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any committee member from serving the Corporation
in any other capacity and receiving compensation therefor.
ARTICLE VI
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Officers
--------
Section 1. Officers. The officers of the Corporation shall be a Chief
--------
Executive Officer, a President, a Chief Financial Officer and Treasurer and a
Secretary, and may also include one or more Vice Presidents, Assistant
Secretaries or Assistant Treasurers, each of whom shall be elected by the
directors, and shall hold office until his or her successor is duly elected and
qualified or until his or her earlier resignation or removal. None of the
officers of the Corporation except the Chairman or any Vice Chairman of the
Board need be directors. Any number of offices may be held by the same person.
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Section 2. Duties. All officers, as between themselves and the Corporation,
------
shall have such authority and perform such duties in the management of the
Corporation as may be provided in these Bylaws, or, to the extent not so
provided, as may be provided by resolution of the Board of Directors or, as to
all other officers except by the Chief Executive Officer.
Section 3. Resignations. Any officer may resign at any time by giving
------------
written notice of such resignation to the Board of Directors, the Chief
Executive Officer, the President, a Vice President or the Secretary. Unless
otherwise specified in such written notice, such resignation shall take effect
upon receipt thereof by the Board of Directors or any such officer.
Section 4. Removal. Any officer may be removed at any time, either with or
-------
without cause, by the vote of a majority of all the directors then in office.
Section 5. Vacancies. A vacancy in any office by reason of death,
----------
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed by these Bylaws for
regular election or appointment to such office.
Section 6. Chief Executive Officer. Subject to the direction of the Board
-----------------------
of Directors, the Chief Executive Officer shall supervise and direct the daily
management of the business, affairs and property of the Corporation. In the
absence or disability of the Chief Executive Officer, or if there be none, the
Chairman of the Board shall preside at all meetings of the stockholders. The
Chief Executive Officer shall be charged with seeing that all orders and
resolutions of the Board of Directors are carried into effect. The Chief
Executive Officer may sign, with any other officer thereunto duly authorized,
certificates of stock of the Corporation the issuance of which shall have been
duly authorized (the signature to which may be facsimile signature), and may
sign and execute in the name of the Corporation, deeds, mortgages, bonds,
contracts, agreements, and other instruments. From time to time he or she shall
report to the Board of Directors all matters within his or her knowledge which
the interests of the Corporation may require to be brought to its attention. The
Chief Executive Officer shall also perform such other duties as are assigned by
these Bylaws or as from time to time may be assigned to him or her by the Board
of Directors.
Section 7. President. The President, if there be one, shall perform such
---------
duties as from time to time may be assigned to him or her by the Board of
Directors or the Chief Executive Officer. The President may sign, with any other
officer thereunto duly authorized, certificates of stock of the Corporation the
issuance of which shall have been duly authorized (the signature to which may be
facsimile signature), and may sign and execute in the name of the Corporation,
deeds, mortgages, bonds, contracts, agreements, and other instruments.
Section 8. Vice President. In the absence or disability of the Chief
--------------
Executive Officer and President, the Vice President, or if there be more than
one, the Vice Presidents in the order of priority determined by the Board of
Directors, shall perform all the duties of the Chief Executive Officer or
President and, when so acting, shall have all the powers of and be subject to
all restrictions upon the Chief Executive Officer or President, as the case may
be. Any Vice President may also sign, with any other officer thereunto duly
authorized, certificates of stock of the Corporation the issuance of which shall
have been duly authorized (the signature to which may be a facsimile signature),
and may sign and execute in the name of the Corporation deeds,
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mortgages, bond and other instruments, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent. Each Vice President shall perform such other duties as
are assigned by these Bylaws or as from time may be assigned by the Board of
Directors, the Chief Executive Officer or the President.
Section 9. Secretary. The Secretary shall: (i) record all the proceedings
---------
of the meetings of the stockholders, the Board of Directors, and all committees
of the Board of Directors in a book or books to be kept for that purpose; (ii)
cause all notices to be duly given in accordance with the provisions of these
Bylaws as required by statute; (iii) whenever any committee shall be appointed
in pursuance of a resolution of the Board of Directors, furnish the chairman of
such committee with a copy of such resolution; (iv) be custodian of the records
and of the seal of the Corporation, and cause such seal to be affixed to all
certificates representing capital stock of the Corporation prior to the issuance
thereof and to all instruments the execution of which on behalf of the
Corporation under its seal shall have been duly authorized; (v) see that the
lists, books, reports, statements, certificates and other documents and records
required by statute are properly kept and filed; (vi) have charge of the stock
record and stock transfer books of the Corporation, and exhibit such stock books
at all reasonable times to such persons as are entitled by statute to have
access thereto; (vii) sign (unless the Treasurer or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing capital stock of the
Corporation the issuance of which shall have been duly authorized (the signature
to which may be a facsimile signature); and (viii) in general, perform all
duties incident to the office of Secretary and such other duties as are given to
him or her by these Bylaws or as from time to time may be assigned to him or her
by the Board of Directors, the Chief Executive Officer or the President.
Section 10. Assistant Secretaries. At the request of the Secretary or in
---------------------
his or her absence or disability, the Assistant Secretary designated by him or
her (or in the absence of such designation, the Assistant Secretary designated
by the Board of Directors or the President) shall perform all the duties of the
Secretary, and, when so acting, shall have all the powers of and be subject to
all restrictions upon the Secretary. The Assistant Secretaries shall perform
such other duties as from time to time may be assigned to them by the Board of
Directors, the President, Chief Executive Officer or the Secretary.
Section 11. Chief Financial Officer and Treasurer. The Chief Financial
-------------------------------------
Officer and Treasurer shall: (i) have charge of and supervision over and be
responsible for the funds, securities, receipts and disbursements of the
Corporation; (ii) cause the monies and other valuable effects of the Corporation
to be deposited in the name and to the credit of the Corporation in such banks
or trust companies or with such bankers or other depositaries as shall be
selected in accordance with Article VIII, Section 2 of these Bylaws or to be
otherwise dealt with in such manner as the Board of Directors may direct; (iii)
cause the funds of the Corporation to be disbursed by checks or drafts upon the
authorized depositaries of the Corporation, and cause to be taken and preserved
proper vouchers for all monies disbursed; (iv) render to the Board of Directors
or the Chief Executive Officer, whenever required, a statement of the financial
condition of the Corporation and of all his or her transactions as Chief
Financial Officer and Treasurer; (v) cause to be kept at the Corporation's
principal office correct books of account of all its business and transactions
and such duplicate books of account as he or she shall determine and upon
application cause such books or duplicates thereof to be exhibited to any
Director; (vi) be empowered, from time to time, to require from the officers or
agents of the Corporation
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reports or statements giving such information as he or she may desire with
respect to any and all financial transactions of the Corporation; (vii) sign
(unless the Secretary or an Assistant Secretary or Assistant Treasurer shall
sign) certificates representing stock of the Corporation the issuance of which
shall have been duly authorized (the signature to which may be a facsimile
signature); and (viii) in general, perform all duties incident to the office of
Treasurer and such other duties as are given to him or her by these Bylaws or as
from time to time may be assigned to him or her by the Board of Directors or the
Chief Executive Officer.
Section 12. Assistant Treasurers. At the request of the Chief Financial
--------------------
Officer and Treasurer or in his or her absence or disability, the Assistant
Treasurer designated by him or her (or in the absence of such designation, the
Assistant Treasurer designated by the Board of Directors or the President) shall
perform all the duties of the Chief Financial Officer and Treasurer, and, when
so acting, shall have all the powers of an be subject to all restrictions upon
the Chief Financial Officer and Treasurer. The Assistant Treasurers shall
perform such other duties as from time to time may be assigned by the Board of
Directors, the Chief Executive Officer or the Chief Financial Officer and
Treasurer.
Section 13. Salaries. The salaries of the officers of the Corporation shall
--------
be fixed from time to time by the Board of Directors. No officer shall be
prevented from receiving such salary by reason of the fact that he or she is
also a director of the Corporation.
ARTICLE VII
-----------
Certificates of Stock
---------------------
Section 1. Stock Certificates. Every holder of capital stock of the
------------------
Corporation shall be entitled to have a certificate or certificates in such form
as shall be approved by the Board of Directors, certifying the number of shares
of capital stock of the Corporation owned by him or her. The certificates
representing shares of capital stock shall be signed in the name of the
Corporation by the Chief Executive Officer or the President or any Vice
President, and by the Secretary, an Assistant Secretary, the Chief Financial
Officer and Treasurer or an Assistant Treasurer (which signatures may be
facsimiles) and sealed with the seal of the Corporation (which seal may be a
facsimile). In case any officer, transfer agent or registrar who shall have
signed or whose facsimile signature has been placed upon such certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificates are issued, they may nevertheless be issued by the Corporation with
the same effect as if such officer, transfer agent, or registrar were still such
at the date of their issue.
Section 2. Books of Account and Record of Stockholders. The books and
-------------------------------------------
records of the Corporation may be kept at such places, within or without the
State of Delaware, as the Board of Directors may from time to time determine.
The stock record books and the blank stock certificate books shall be kept by
the Secretary or by any other officer or by the transfer agent or registrar, if
any, designated by the Board of Directors. There shall be entered on the stock
books of the Corporation the number of each certificate issued, the number of
shares represented
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thereby, the name of the person to whom such certificate was issued and the date
of issuance thereof.
Section 3. Transfers of Stock. Transfers of shares of capital stock of the
------------------
Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his or her attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary or with the transfer agent, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly executed
stock transfer power and the payment of all taxes thereon, if any. Except as
otherwise provided by law, the Corporation shall be entitled to recognize the
exclusive right of a person in whose name any share or shares stand on the
record of stockholders as the owner of such share or shares for all purposes,
including, without limitation, the rights to receive dividends or other
distributions, and to vote as such owner, and the Corporation shall not be bound
to recognize any equitable or legal claim to or interest in any such share or
shares on the part of any other person whether or not the Corporation shall have
express or other notice thereof.
Section 4. Regulations. The Board of Directors may make such additional
-----------
rules and regulations, not inconsistent with these Bylaws, as it may deem
expedient concerning the issue, transfer and registration of certificates for
shares of the capital stock of the Corporation. It may appoint, or authorize any
officer or officers to appoint, one or more transfer agents or one or more
registrars and may further provide that no stock certificate shall be valid
until countersigned by one of such transfer agents and registered by one of such
registrars. Nothing herein shall be construed to prohibit the Corporation from
acting as its own transfer agent or registrar.
Section 5. Lost, Stolen or Destroyed Certificates. The holder of any
--------------------------------------
certificate representing any share or shares of the capital stock of the
Corporation shall immediately notify the Corporation of any loss, theft, or
destruction of such certificate. The Board of Directors may direct that a new
certificate or certificates be issued in the place of any certificate or
certificates theretofore issued by it which the owner thereof shall allege to
have been lost, stolen or destroyed upon the furnishing to the Corporation of an
affidavit to that effect by the person claiming that the certificate has been
lost, stolen or destroyed. When authorizing such issue of a new certificate of
certificates, the Board of Directors may, in its discretion, require such owner
or his or her legal representatives to give to the Corporation and its transfer
agent(s) and registrar(s) a bond in such sum, limited or unlimited, and in such
form and with such surety or sureties as the Board of Directors in it absolute
discretion shall determine, sufficient to indemnify the Corporation 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 a new certificate.
Section 6. Stockholder's Right of Inspection. Any stockholder of record of
---------------------------------
the Corporation, in person or by attorney or other agent, shall upon written
demand under oath stating the purpose thereof, have the right during the usual
hours for business to inspect for any proper purpose the Corporation's stock
ledger, a list of its stockholders, and its other books and records, and to make
copies or extracts therefrom. A proper purpose shall mean a purpose reasonably
related to such person's interest as a stockholder. In every instance where an
attorney or other
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agent shall be the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing which
authorized 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.
ARTICLE VIII
------------
Deposit of Corporate Funds
--------------------------
Section 1. Borrowing. No loans or advances shall be obtained or contracted
---------
for, by or on behalf of the Corporation and no negotiable paper shall be issued
in its name, unless and except as authorized by the Board of Directors. Such
authorization may be general or confined to specific instances.
Section 2. Deposits. All funds of the Corporation not otherwise employed
--------
shall be deposited from time to time to its credit in such banks or trust
companies or with such bankers or other depositaries as the Board of Directors
may select, or as may be selected by any officer or officers or agent or agents
authorized to do so by the Board of Directors.
Section 3. Checks, Drafts, Etc. All checks, drafts or other orders for the
-------------------
payment of money, and all negotiable and non-negotiable notes or other
negotiable or non-negotiable evidences of indebtedness issued in the name of the
Corporation, shall be signed by such officer or officers or agent or agents of
the Corporation, and in such manner, as from time to time shall be determined by
the Board of Directors.
ARTICLE IX
----------
Record Dates
------------
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 to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall be not
more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action. Only those
stockholders of record on the date so fixed shall be entitled to any of the
foregoing rights, notwithstanding the transfer of any such stock on the books of
the Corporation after any such record date fixed by the Board of Directors.
-13-
ARTICLE X
---------
Dividends
---------
Subject to any agreement to which the Corporation is a party or by which it
is bound, the Board of Directors may declare to be payable, in cash, in other
property or in stock of the Corporation of any class or series, such dividends
in respect of outstanding stock of the Corporation of any class or series as the
Board of Directors may at any time deem to be advisable. Before declaring any
such dividend, the Board of Directors may cause to be set aside any funds or
other property or assets of the Corporation legally available for the payment of
dividends.
ARTICLE XI
----------
Fiscal Year
-----------
The fiscal year of the Corporation shall be determined by resolution of the
Board of Directors.
ARTICLE XII
-----------
Indemnification
---------------
Section 1. Right to Indemnification. Each person who was or is made a party
------------------------
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that such person, or another
person of whom such person is the legal representative, is or was a director,
officer, or employee of the corporation or is or was serving at the request of
the corporation as a director, officer, or employee of, or in some other
representative capacity for, another corporation or a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, or employee or in any other capacity
while serving as a director, officer, or employee, shall be indemnified and held
harmless by the corporation to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended, against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, or employee and shall inure to the benefit of such person's heirs,
executors and administrators; provided, however, that except as provided in
Section 2 hereof with respect to proceedings seeking to enforce rights to
indemnification, the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
board of directors of the corporation. The right to indemnification conferred in
this Article shall be a contract right and shall include the right to be
-14-
paid by the corporation the expenses incurred in defending any such proceeding
in advance of its final disposition; provided, however, that, if the Delaware
General Corporation Law so requires, the payment of such expenses incurred by a
director, officer, employee or representative in such person's capacity as a
director, officer, employee or representative (and not in any other capacity in
which service was or is rendered by such person while a director, officer,
employee or representative, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the corporation of an undertaking, by or on
behalf of such person, to repay all amounts so advanced if it shall ultimately
be determined that such director or officer is not entitled to be indemnified
under this Article or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under Section 1 of
-------------------------------
this Article is not paid in full by the corporation within ninety (90) days
after a written claim has been received by the corporation, the claimant may at
any time thereafter bring suit against the corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the corporation. Neither the failure of the
corporation (including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the corporation
(including its board of directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights. The right to indemnification and the
-------------------------
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, 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, and shall continue as to a person who has ceased to be director,
officer, employee or agent of the corporation and shall inure to the benefit of
the heirs, executors and administrators of such a person.
Section 4. Insurance. The corporation may maintain insurance, at its
---------
expense, to protect itself and any director, officer, or employee of the
corporation serving in any capacity on behalf of the corporation or at its
request for any other entity to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended, whether
or not the corporation would have the power to indemnify such person against
such expense, liability or loss under the Delaware General Corporation Law.
-15-
Section 5. Severability. If any word, clause or provision of this Article
------------
XII or any award made hereunder shall for any reason be determined to be
invalid, the provisions hereof shall not otherwise be affected thereby but shall
remain in full force and effect.
Section 6. Intent of Article. The intent of this Article XII is to provide
-----------------
for indemnification to the fullest extent permitted by section 145 of the
Delaware General Corporation Law. To the extent that such section or any
successor section may be amended or supplemented from time to time, this Article
XII shall be amended automatically and construed so as to permit indemnification
to the fullest extent from time to time permitted by law. Neither an amendment
nor repeal of this Article XII, nor the adoption of any provision of these
Bylaws inconsistent with this Article XII, shall eliminate or reduce the effect
of this Article XII in respect of any matter occurring, or action or proceeding
accruing or arising or that, but for this Article XII, would accrue or arise,
prior to such amendment repeal or adoption of any inconsistent provision.
ARTICLE XIII
------------
Corporate Seal
--------------
The Corporate Seal shall be circular in form and shall bear the name of the
Corporation and the words and figures denoting its organization under the laws
of the State of Delaware and year thereof and otherwise shall be in such form as
shall be approved from time to time by the Board of Directors.
ARTICLE XIV
-----------
Amendments
----------
The Board of Directors is expressly empowered to adopt, amend or repeal
Bylaws of the Corporation, provided, however, that any adoption, amendment or
repeal of Bylaws of the corporation by the Board of Directors shall require the
approval of at sixty-six and two-thirds percent (66 2/3%) of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any resolution providing for adoption,
amendment or repeal is presented to the Board). The stockholders shall also have
power to adopt, amend or repeal these Bylaws, provided, however, that in
addition to any vote of the holders of any class or series of stock of this
corporation required by law or by the Restated Certificate of Incorporation of
this corporation, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all of the then outstanding
shares of the stock of the corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required for
such adoption, amendment or repeal by the stockholders of any provisions of
these Bylaws.
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CERTIFICATE OF SECRETARY
I, the undersigned, hereby certify:
1. That I am the duly elected, acting and qualified Secretary of
SUPPORT.COM, INC., a Delaware corporation; and
2. That the foregoing Bylaws, comprising 16 pages, constitute the
Bylaws of such corporation as duly adopted at a meeting of the board of
directors of such corporation held on February 15, 2000.
Dated: _______ __, 2000.
_____________________________________
Secretary
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 2/18/00 | | | | | | | None on these Dates |
| | 2/15/00 | | 21 |
| List all Filings |
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