Biolife Solutions Inc 8-K, filed Oct 6, 2026
Biolife Solutions Inc (BLFS)
About this 8-K
Biolife Solutions Inc filed this 8-K on October 6, 2026.
Items reported
- Item 2.01: Completed an acquisition or sale of assets
- Item 3.01: Delisting notice or listing transfer
- Item 3.03: Change to shareholders' rights
- Item 5.01: Change in control
- Item 5.02: Director or officer change, or executive pay
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 5.07: Shareholder vote results
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Explanatory Note
On October 6, 2026, the previously announced acquisition of BioLife Solutions, Inc., a Delaware corporation (“BioLife”), by Repligen Corporation, a Delaware corporation (“Repligen”), was completed, pursuant to the Agreement and Plan of Merger, dated as of July 21, 2026 (the “Merger Agreement”), by and among BioLife, Repligen, Bravo Merger Sub I, Inc., a Delaware corporation and wholly owned subsidiary of Repligen (“Merger Sub 1”), and Bravo Merger Sub II, LLC, a Delaware limited liability company and wholly owned subsidiary of Repligen (“Merger Sub 2”).
Pursuant to the Merger Agreement, on October 6, 2026, Merger Sub 1 merged with and into BioLife (the “First Merger”), with BioLife surviving the First Merger as a direct, wholly owned subsidiary of Repligen, and immediately following the First Merger, BioLife merged with and into Merger Sub 2 (the “Second Merger,” and, together with the First Merger, the “Mergers”), with Merger Sub 2 surviving the Second Merger as a direct, wholly owned subsidiary of Repligen.
The Merger Agreement and the transactions contemplated thereby, including the Mergers, were previously described in the definitive proxy statement of BioLife, dated as of and filed with the Securities and Exchange Commission (the “SEC”) on September 4, 2026 (as supplemented, the “Proxy Statement”) and the Registration Statement on Form S-4 of Repligen (Registration No. 333-298546), in the form in which it was declared effective by the SEC on September 4, 2026.
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
The information set forth in the “Explanatory Note” of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.
At the effective time of the First Merger (the “First Merger Effective Time”), each share of BioLife’s common stock, par value $0.001 per share (“BioLife Common Stock”), issued and outstanding immediately prior to the First Merger Effective Time (other than (i) any shares that were held by BioLife in treasury or owned by Repligen, Merger Sub 1 or Merger Sub 2 (the “Excluded Shares”) and (ii) shares with respect to which appraisal rights were properly exercised and perfected, and were not withdrawn, in accordance with Delaware law (the “Dissenting Shares”)) (the “BioLife Shares”) converted automatically into the right to receive (A) 0.1442 validly issued, fully paid and nonassessable shares of Repligen common stock (such shares of Repligen common stock, the “Stock Consideration”) and (B) $11.25 in cash, without interest (the “Cash Consideration” and together with the Stock Consideration, the “Merger Consideration”). No fractional shares of Repligen common stock were issued in the Mergers, and stockholders of BioLife received cash in lieu of any fractional shares as part of the Merger Consideration, as specified in the Merger Agreement.
Immediately prior to the First Merger Effective Time:
| • | options to acquire shares of BioLife Common Stock (“BioLife Options”) outstanding immediately prior to the First Merger Effective Time, whether vested or unvested, became fully vested and were cancelled in exchange for a payment to the holder thereof in shares of BioLife Common Stock equal to (i) the number of shares of BioLife Common Stock subject to such BioLife Options minus (ii) a number of any shares of BioLife Common Stock equal in value to the aggregate exercise price thereof (net of any shares of BioLife Common Stock equal in value to any applicable tax to be deducted or withheld in respect thereof); |
| • | awards of restricted stock units of BioLife that were subject solely to time-based vesting (“BioLife RSUs”) outstanding immediately prior to the First Merger Effective Time were accelerated, vested in full, and were settled and paid to the holder thereof in shares of BioLife Common Stock (net of any shares of BioLife Common Stock equal in value to any applicable tax to be deducted or withheld in respect thereof); |
| • | awards of restricted stock units of BioLife that were subject to performance-based vesting (“BioLife PSUs”) outstanding immediately prior to the First Merger Effective Time were accelerated, vested in full, and were settled and paid to the holder thereof in shares of BioLife Common Stock (assuming the greater of target or actual (measured as of the latest practicable date prior to the First Merger Effective Time) achievement of the applicable performance goals and net of any shares of BioLife Common Stock equal in value to any applicable tax to be deducted or withheld in respect thereof); and |
| • | awards of outstanding unvested restricted stock of BioLife (“BioLife RSAs”) were accelerated, vested in full, and were released to the holder thereof in shares of BioLife Common Stock (net of any shares of BioLife Common Stock equal in value to any applicable tax to be deducted or withheld in respect thereof). |
All shares of BioLife Common Stock issuable pursuant to the BioLife Options, BioLife RSUs, BioLife PSUs and BioLife RSAs as provided above converted automatically into the right to receive the Merger Consideration as of the First Merger Effective Time.
The foregoing summary does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Merger Agreement, which is attached as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The Merger Agreement has been attached as an exhibit to this Current Report on Form 8-K to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about BioLife or Repligen or to modify or supplement any factual disclosures about BioLife or Repligen in their public reports filed with the SEC. The Merger Agreement includes representations, warranties and covenants of BioLife and Repligen made solely for the purposes of the Merger Agreement, which may be subject to important qualifications and limitations agreed to by BioLife and Repligen in connection with the negotiated terms of the Merger Agreement. Moreover, some of those representations and warranties may not be accurate or complete as of any specified date, and may be subject to certain disclosures between the parties and a contractual standard of materiality different from those generally applicable to BioLife’s or Repligen’s SEC filings. In addition, the representations and warranties were made for purposes of allocating risk among the parties to the Merger Agreement and should not be relied upon as establishing factual matters.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
The disclosure under the “Explanatory Note” of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.
As a result of the Mergers, BioLife has ceased to exist as a separate legal entity and therefore no longer fulfills the listing requirements of The Nasdaq Capital Market (“Nasdaq”). In connection with the consummation of the Mergers, on October 5, 2026, BioLife notified Nasdaq that it anticipates that the Mergers will close prior to the opening of trading on October 6, 2026 and requested that Nasdaq (i) halt trading of BioLife Common Stock following closing of the after-market trading session at or about 8:00 p.m., Eastern Time, on October 5, 2026, (ii) subject to BioLife’s confirmation of closing of the Mergers on October 6, 2026, suspend trading of BioLife Common Stock as of the close of business on October 6, 2026, and (iii) subject to BioLife’s confirmation of closing of the Mergers on October 6, 2026, file with the SEC a Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on Form 25 to effect the delisting of BioLife Common Stock from Nasdaq and to deregister BioLife Common Stock under Section 12(b) of the Exchange Act. As a result, BioLife Common Stock will not continue to be listed on Nasdaq. On October 6, 2026, BioLife notified Nasdaq that the Mergers had closed.
In addition, BioLife intends to file with the SEC a Certification and Notice of Termination of Registration on Form 15 with respect to BioLife Common Stock requesting the deregistration of BioLife Common Stock under Section 12(g) of the Exchange Act and the corresponding immediate suspension of BioLife’s reporting obligations under Sections 13 and 15(d) of the Exchange Act as promptly as practicable, and to cease filing any further periodic reports with respect to BioLife since it no longer exists as a public company.
| Item 3.03 | Material Modification to Rights of Security Holders. |
At the First Merger Effective Time, as a result of the consummation of the First Merger, each holder of the BioLife Shares outstanding immediately prior to the First Merger Effective Time (other than the Excluded Shares, which were cancelled as of the First Merger Effective Time) ceased to have any rights as a stockholder of BioLife (other than (i) in the case of BioLife Shares other than the Dissenting Shares, the right to receive the Merger Consideration for such stockholder’s BioLife Shares and (ii) in the case of Dissenting Shares only, the right to receive only the payment provided by Section 262 of the DGCL in respect of such Dissenting Shares).
The disclosures under the “Explanatory Note” and Items 2.01, 3.01 and 5.03 of this Current Report on Form 8-K are incorporated by reference into this Item 3.03.
| Item 5.01 | Changes in Control of Registrant. |
The disclosures under the “Explanatory Note” and Items 2.01, 3.01, 3.03, 5.02 and 5.03 of this Current Report on Form 8-K are incorporated by reference into this Item 5.01.
As a result of the consummation of the Mergers, a change in control of BioLife occurred, and BioLife became a wholly owned subsidiary of Repligen.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
The disclosures under the “Explanatory Note” and Item 2.01 of this Current Report on Form 8-K are incorporated by reference into this Item 5.02.
Pursuant to the Merger Agreement, effective as of the First Merger Effective Time, each of Roderick de Greef, Cathy Coste, Amy DuRoss, Rachel Ellingson, Joydeep Goswami, MBA, PhD, Tony Hunt and Tim Moore, comprising all of the members of BioLife’s board of directors, ceased serving as a member of BioLife’s board of directors and each committee thereof. At the First Merger Effective Time, in accordance with the terms of the Merger Agreement, each of the directors and officers of Merger Sub 1 immediately prior to the First Merger Effective Time became the directors and officers of BioLife.
Effective as of the First Merger Effective Time, each of Roderick de Greef, Troy Wichterman, Aby J. Mathew, Todd Berard and Sean Warner, comprising all of BioLife’s named executive officers, resigned from their respective positions with BioLife.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change of Fiscal Year. |
Pursuant to the Merger Agreement, effective as of the First Merger Effective Time, the amended and restated certificate of incorporation of BioLife, as amended, and the amended and restated bylaws of BioLife, were each amended and restated in their entirety, as set forth in Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K, which are incorporated by reference into this Item 5.03.
The disclosures under the “Explanatory Note” and Item 2.01 of this Current Report on Form 8-K are incorporated by reference into this Item 5.03.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
BioLife held a special meeting of its stockholders (the “Special Meeting”) on October 5, 2026, to vote on the three proposals described in the Proxy Statement. As disclosed in the Proxy Statement, as of the close of business on September 3, 2026, the record date for determining stockholders entitled to notice of and to vote at the Special Meeting (the “Record Date”), there were 48,923,333 shares of BioLife Common Stock, outstanding and entitled to vote at the Special Meeting. A total of 40,994,595 shares of BioLife Common Stock (representing approximately 83.79% of the shares of BioLife Common Stock outstanding on the Record Date and entitled to vote at the Special Meeting) were present virtually or represented by proxy at the Special Meeting, constituting a quorum for the Special Meeting.
The final voting results for each of the proposals submitted to a vote of BioLife’s stockholders at the Special Meeting are as follows:
Proposal 1 - Adoption of the Merger Agreement: The stockholders of BioLife adopted the Merger Agreement, pursuant to which Repligen acquired BioLife via the Mergers. The voting results are set forth in the table immediately below:
| For |
Against |
Abstain | ||
| 40,910,337 | 83,451 | 807 |
Proposal 2 - Advisory Vote (Non-binding) Vote on Merger-Related Compensation for Named Executive Officers: The stockholders of BioLife approved, on an advisory (non-binding) basis, the compensation that may be paid or become payable to BioLife’s named executive officers identified in the Proxy Statement that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement. The voting results are set forth in the table immediately below:
| For |
Against |
Abstain | ||
| 35,037,565 | 5,914,889 | 42,141 |
Proposal 3 - Adjournment of the Special Meeting: The stockholders of BioLife approved a proposal to adjourn the Special Meeting to a later date or dates, if necessary or appropriate, including to solicit additional proxies if there were insufficient votes to adopt the Merger Agreement at the time of the Special Meeting. Although this proposal was approved by the stockholders of BioLife, because there were sufficient votes represented at the time of the Special Meeting to approve the proposal to adopt the Merger Agreement, this proposal to approve the adjournment of the Special Meeting is moot. The voting results are set forth in the table immediately below:
| For |
Against |
Abstain | ||
| 35,145,379 | 5,562,965 | 286,251 |
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit No. | Description of Exhibit | |
| 2.1* | Agreement and Plan of Merger, dated as of July 21, 2026, by and among BioLife Solutions, Inc., Repligen Corporation, Bravo Merger Sub I, Inc., and Bravo Merger Sub II, LLC (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by BioLife with the SEC on July 22, 2026) | |
| 3.1 | Amended and Restated Certificate of Incorporation of BioLife Solutions, Inc. | |
| 3.2 | Amended and Restated Bylaws of BioLife Solutions, Inc. | |
| 104 | Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document | |
| * | Portions of this Exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K under the Securities Act of 1933, as amended. BioLife will furnish copies of any omitted exhibits and schedules to the SEC upon its request; provided, that BioLife may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any exhibits or schedules so furnished. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| BioLife Solutions, Inc. | ||||||
| Date: October 6, 2026 | By: | /s/ Troy Wichterman | ||||
| Name: Troy Wichterman | ||||||
| Title: Chief Financial Officer | ||||||
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BIOLIFE SOLUTIONS, INC.
ARTICLE I: NAME
The name of the Corporation is BioLife Solutions, Inc.
ARTICLE II: AGENT FOR SERVICE OF PROCESS
The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of the registered agent at such address is The Corporation Trust Company.
ARTICLE III: PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (the “DGCL”) or any successor statute.
ARTICLE IV: AUTHORIZED STOCK
The total number of shares of stock that the Corporation has authority to issue is 1,000 shares, all of which shall be common stock, $0.001 par value per share.
ARTICLE V: AMENDMENT OF BYLAWS
The board of directors of the Corporation shall have the power to adopt, amend or repeal bylaws of the Corporation.
ARTICLE VI: VOTE BY BALLOT
Election of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.
ARTICLE VII: DIRECTOR AND OFFICER LIABILITY
No director shall be personally liable to the Corporation or its stockholders for monetary damages for breach of his or her fiduciary duty as a director, except (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL or (d) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended after the effective date of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Any amendment, repeal or modification of this Article VII by either of (i) the stockholders of the Corporation or (ii) an amendment to the DGCL, shall not adversely affect any right or protection existing at the time of such amendment, repeal or modification with respect to any acts or omissions occurring before such amendment, repeal or modification of a person serving as a director at the time of such amendment, repeal or modification.
ARTICLE VIII: INDEMNIFICATION
The Corporation shall indemnify each 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, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against 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 such person did not act in good faith and in a manner that 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.
The Corporation shall indemnify each 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, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against 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 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 such court shall deem proper.
To the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to herein 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.
2
Any indemnification herein, 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, officer, employee or agent is proper in the circumstances because such person has met the applicable standard of conduct set forth herein. Such determination shall be made by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or, if such a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or by the stockholders.
The Corporation shall pay expenses incurred in defending a civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized herein. The indemnification and advancement of expenses provided herein shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person.
The indemnification and advancement of expenses provided herein or granted pursuant hereto shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under 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. The Corporation may purchase and maintain insurance on behalf of any person who is or was serving the Corporation in any capacity referred to herein against any liability asserted against such person and incurred by such person in such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions hereof. The provisions herein shall be applicable to all claims, actions, suits or proceedings made or commenced after the adoption hereof, whether arising from acts or omissions to act occurring before or after the adoption hereof.
ARTICLE IX: AMENDMENT OF CERTIFICATE OF INCORPORATION
Subject to such limitations as may be from time to time imposed by other provisions of this Certificate of Incorporation, by the bylaws of the Corporation, by the DGCL or other applicable law, or by any contract or agreement to which the Corporation is or may become a party, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this express reservation.
********************
3
IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been executed by a duly authorized officer of this corporation on this 6th day of October, 2026.
| BioLife Solutions, Inc. | ||
| By: | /s/ Roderick de Greef | |
| Name: Roderick de Greef | ||
| Title: Chief Executive Officer | ||
4
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
BIOLIFE SOLUTIONS, INC.
As adopted on October 6, 2026
AMENDED AND RESTATED
BYLAWS OF
BIOLIFE SOLUTIONS, INC.
(a Delaware corporation)
TABLE OF CONTENTS
| Page | ||||||
| Article I OFFICES |
1 | |||||
| 1.1 |
Registered Office | 1 | ||||
| 1.2 |
Offices | 1 | ||||
| Article II MEETINGS OF STOCKHOLDERS |
1 | |||||
| 2.1 |
Location | 1 | ||||
| 2.2 |
Timing | 1 | ||||
| 2.3 |
Notice of Meeting | 1 | ||||
| 2.4 |
Stockholders’ Records | 1 | ||||
| 2.5 |
Special Meetings | 2 | ||||
| 2.6 |
Notice of Meeting | 2 | ||||
| 2.7 |
Business Transacted at Special Meeting | 2 | ||||
| 2.8 |
Quorum; Meeting Adjournment; Presence by Remote Means | 2 | ||||
| 2.9 |
Voting Thresholds | 3 | ||||
| 2.10 |
Number of Votes Per Share | 3 | ||||
| 2.11 |
Action by Written Consent of Stockholders; Electronic Consent; Notice of Action | 3 | ||||
| Article III DIRECTORS |
4 | |||||
| 3.1 |
Authorized Directors | 4 | ||||
| 3.2 |
Vacancies | 4 | ||||
| 3.3 |
Board Authority | 4 | ||||
| 3.4 |
Location of Meetings | 5 | ||||
| 3.5 |
First Meeting | 5 | ||||
| 3.6 |
Regular Meetings | 5 | ||||
| 3.7 |
Special Meetings | 5 | ||||
| 3.8 |
Quorum | 5 | ||||
| 3.9 |
Action Without a Meeting | 6 | ||||
| 3.10 |
Telephonic Meetings | 6 | ||||
| 3.11 |
Committees | 6 | ||||
| 3.12 |
Minutes of Meetings | 6 | ||||
| 3.13 |
Compensation of Directors | 6 | ||||
| 3.14 |
Removal of Directors | 6 | ||||
i
| Article IV NOTICES |
7 | |||||
| 4.1 |
Notice | 7 | ||||
| 4.2 |
Waiver of Notice | 7 | ||||
| 4.3 |
Electronic Notice | 7 | ||||
| Article V OFFICERS |
8 | |||||
| 5.1 |
Required and Permitted Officers | 8 | ||||
| 5.2 |
Appointment of Required Officers | 8 | ||||
| 5.3 |
Appointment of Permitted Officers | 8 | ||||
| 5.4 |
Officer Compensation | 8 | ||||
| 5.5 |
Term of Office; Vacancies | 8 | ||||
| 5.6 |
Chairman Presides | 8 | ||||
| 5.7 |
Absence of Chairman | 8 | ||||
| 5.8 |
Powers of President | 8 | ||||
| 5.9 |
President’s Signature Authority | 9 | ||||
| 5.10 |
Absence of President | 9 | ||||
| 5.11 |
Duties of Secretary | 9 | ||||
| 5.12 |
Duties of Assistant Secretary | 9 | ||||
| 5.13 |
Duties of Treasurer | 9 | ||||
| 5.14 |
Disbursements and Financial Reports | 9 | ||||
| 5.15 |
Treasurer’s Bond | 10 | ||||
| 5.16 |
Duties of Assistant Treasurer | 10 | ||||
| Article VI CERTIFICATE OF STOCK |
10 | |||||
| 6.1 |
Stock Certificates | 10 | ||||
| 6.2 |
Facsimile Signatures | 10 | ||||
| 6.3 |
Lost Certificates | 11 | ||||
| 6.4 |
Transfer of Stock | 11 | ||||
| 6.5 |
Fixing a Record Date | 11 | ||||
| 6.6 |
Registered Stockholders | 11 | ||||
| Article VII GENERAL PROVISIONS |
11 | |||||
| 7.1 |
Dividends | 11 | ||||
| 7.2 |
Reserve for Dividends | 11 | ||||
| 7.3 |
Checks | 12 | ||||
| 7.4 |
Fiscal Year | 12 | ||||
| 7.5 |
Corporate Seal | 12 | ||||
| 7.6 |
Indemnification | 12 | ||||
| 7.7 |
Conflicts with Certificate of Incorporation | 14 | ||||
| Article VIII AMENDMENTS |
14 | |||||
| Article IX LOANS TO OFFICERS |
14 | |||||
| Article X RECORDS AND REPORTS |
14 | |||||
| **** |
14 | |||||
ii
AMENDED AND RESTATED
BYLAWS
OF
BIOLIFE SOLUTIONS, INC.
ARTICLE I
OFFICES
1.1 Registered Office. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware.
1.2 Offices. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors of the corporation (the “Board”) may from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Location. All meetings of the stockholders for the election of directors shall be held at any place within or outside the State of Delaware as shall be designated from time to time by the Board and stated in the notice of the meeting; provided that the Board may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211 of the Delaware General Corporations Law (the “DGCL”). Meetings of stockholders for any other purpose may be held at such time and place, if any, within or outside the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof, or a waiver by electronic transmission by the person entitled to notice.
2.2 Timing. Annual meetings of stockholders, commencing with the year 2026, shall be held at such date and time as shall be designated from time to time by the Board and stated in the notice of the meeting, at which they shall elect by a plurality vote a Board, and transact such other business as may properly be brought before the meeting.
2.3 Notice of Meeting. Written notice of any stockholder meeting stating the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, shall be given to each stockholder entitled to vote at such meeting not fewer than 10 nor more than 60 days before the date of the meeting.
2.4 Stockholders’ Records. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address (but not the electronic address or other electronic contact information) of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network; provided that the information required to gain access to such list is provided with the notice of the meeting,
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or (ii) 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 stockholders of the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
2.5 Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the Board, or at the request in writing of stockholders owning at least 50% in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.
2.6 Notice of Meeting. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not fewer than 10 nor more than 60 days before the date of the meeting, to each stockholder entitled to vote at such meeting. The means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting shall also be provided in the notice.
2.7 Business Transacted at Special Meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
2.8 Quorum; Meeting Adjournment; Presence by Remote Means.
(a) Quorum; Meeting Adjournment. 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 by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, 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 shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted that might have been transacted at the meeting as originally notified. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
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(b) Presence by Remote Means. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication:
(i) participate in a meeting of stockholders; and
(ii) be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote communication; provided that (A) the corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (B) the corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the corporation.
2.9 Voting Thresholds. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the 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.
2.10 Number of Votes Per Share. Unless otherwise provided in the certificate of incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote by such stockholder or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period.
2.11 Action by Written Consent of Stockholders; Electronic Consent; Notice of Action.
(a) Action by Written Consent of Stockholders. Unless otherwise provided by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing setting forth the action so taken, is signed in a manner permitted by law by the holders of outstanding stock having not less than the 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. Written stockholder consents shall bear the date of signature of each stockholder who signs the consent in the manner permitted by law and shall be delivered to the corporation as provided in Section 2.11(b). No written consent shall be effective to take the action set forth therein unless, within 60 days of the earliest dated consent delivered to the corporation in the manner provided above, written consents signed by a sufficient number of stockholders to take the action set forth therein are delivered to the corporation in the manner provided above.
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(b) Electronic Consent. A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this section; provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the corporation can determine (i) that the telegram, cablegram or other electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (ii) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested. Notwithstanding the foregoing limitations on delivery, consents given by telegram, cablegram or other electronic transmission may be otherwise delivered to the principal place of business of the corporation or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded if, to the extent and in the manner provided by resolution of the Board.
(c) Notice of Action. Prompt notice of any action taken pursuant to this Section 2.11 shall be provided to the stockholders in accordance with Section 228(e) of the DGCL.
ARTICLE III
DIRECTORS
3.1 Authorized Directors. The number of directors who shall constitute the Board of Directors shall be such number as the Board of Directors shall from time to time have designated. Each director shall hold office until the next election of directors and until his or her successor is elected and qualified, or until his or her earlier death, resignation, retirement, disqualification, or removal.
3.2 Vacancies. Unless otherwise provided in the corporation’s certificate of incorporation, as it may be amended, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least 10% of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office.
3.3 Board Authority. The business of the corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.
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3.4 Location of Meetings. The Board may hold meetings, both regular and special, either within or without the State of Delaware.
3.5 First Meeting. The first meeting of each newly elected Board shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order to legally constitute the meeting; provided that a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected Board, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board, or as shall be specified in a written waiver signed by all of the directors.
3.6 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.
3.7 Special Meetings. Special meetings of the Board may be called by the president upon notice to each director; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the Board consists of only one director, in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Notice of any special meeting shall be given to each director at his business or residence in writing, or by telegram, facsimile transmission, telephone communication or electronic transmission; provided that, with respect to electronic transmission, the director has consented to receive the form of transmission at the address to which it is directed. If mailed, such notice shall be deemed adequately delivered when deposited in the United States mails so addressed, with postage thereon prepaid, at least five days before such meeting. If by telegram, such notice shall be deemed adequately delivered when the telegram is delivered to the telegraph company at least 24 hours before such meeting. If by facsimile transmission or other electronic transmission, such notice shall be transmitted at least 24 hours before such meeting. If by telephone, the notice shall be given at least 12 hours prior to the time set for the meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board needs be specified in the notice of such meeting, except for amendments to these Bylaws as provided under Article VIII. A meeting may be held at any time without notice if all the directors are present (except as otherwise provided by law) or if those not present waive notice of the meeting in writing, either before or after such meeting.
3.8 Quorum. At all meetings of the Board, a majority of the directors shall constitute a quorum for the transaction of business and any act of a majority of the directors present at any meeting at which there is a quorum shall be an act of the Board, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum is not present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
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3.9 Action Without a Meeting. Unless otherwise restricted by the certificate of incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing, writings, electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee.
3.10 Telephonic Meetings. Unless otherwise restricted by the certificate of incorporation or these Bylaws, members of the Board or any committee designated by the Board may participate in a meeting of the Board or any committee, by means of conference telephone or other means of communication by which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at the meeting.
3.11 Committees. The Board may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers that may require it, but no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval or (ii) adopting, amending or repealing any provision of these Bylaws.
3.12 Minutes of Meetings. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.
3.13 Compensation of Directors. Unless otherwise restricted by the certificate of incorporation or these Bylaws, the Board shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board and may be paid a fixed sum for attendance at each meeting of the Board or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.
3.14 Removal of Directors. Unless otherwise provided by the certificate of incorporation or these Bylaws, any director or the entire Board may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors.
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ARTICLE IV
NOTICES
4.1 Notice. Unless otherwise provided in these Bylaws, whenever, under the provisions of the statutes or of the certificate of incorporation or of these Bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram.
4.2 Waiver of Notice. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
4.3 Electronic Notice.
(a) Electronic Transmission. Without limiting the manner by which notice otherwise may be given effectively to stockholders and directors, any notice to stockholders or directors given by the corporation under any provision of the DGCL, the certificate of incorporation or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder or director to whom the notice is given. Any such consent shall be revocable by the stockholder or director by written notice to the corporation. Any such consent shall be deemed revoked if (i) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and (ii) such inability becomes known to the secretary or an assistant secretary of the corporation or to the transfer agent, or other person responsible for the giving of notice; provided that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
(b) Effective Date of Notice. Notice given pursuant to Section 4.3(a) shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder or director has consented to receive notice, (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder or director has consented to receive notice, (iii) if by a posting on an electronic network together with separate notice to the stockholder or director of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice and (iv) if by any other form of electronic transmission, when directed to the stockholder or director. An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the corporation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
(c) Form of Electronic Transmission. For purposes of these Bylaws, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
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ARTICLE V
OFFICERS
5.1 Required and Permitted Officers. The officers of the corporation shall be chosen by the Board and shall be a president, a treasurer and a secretary. The Board may elect from among its members a Chairman of the Board and a Vice-Chairman of the Board. The Board may also choose one or more vice-presidents, assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these Bylaws otherwise provide.
5.2 Appointment of Required Officers. The Board at its first meeting after each annual meeting of stockholders shall choose a president, a treasurer, and a secretary and may choose vice-presidents.
5.3 Appointment of Permitted Officers. The Board may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board.
5.4 Officer Compensation. The salaries of all officers and agents of the corporation shall be fixed by the Board.
5.5 Term of Office; Vacancies. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the Board may be removed at any time by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the corporation shall be filled by the Board.
THE CHAIRMAN OF THE BOARD
5.6 Chairman Presides. The Chairman of the Board, if any, shall preside at all meetings of the Board and of the stockholders at which he or she shall be present. He or she shall have and may exercise such powers as are, from time to time, assigned to him by the Board and as may be provided by law.
5.7 Absence of Chairman. In the absence of the Chairman of the Board, the Vice-Chairman of the Board, if any, shall preside at all meetings of the Board and of the stockholders at which he or she shall be present. He or she shall have and may exercise such powers as are, from time to time, assigned to him by the Board and as may be provided by law.
THE PRESIDENT AND VICE-PRESIDENTS
5.8 Powers of President. The president shall be the chief executive officer of the corporation; in the absence of the Chairman and Vice-Chairman of the Board he or she shall preside at all meetings of the stockholders and the Board; he or she shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the Board are carried into effect.
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5.9 President’s Signature Authority. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board to some other officer or agent of the corporation.
5.10 Absence of President. In the absence of the president or in the event of his inability or refusal to act, the vice-president, if any, (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the Board may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
5.11 Duties of Secretary. The secretary shall attend all meetings of the Board and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or president, under whose supervision he or she shall be. He or she shall have custody of the corporate seal of the corporation and he or she, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The Board may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature.
5.12 Duties of Assistant Secretary. The assistant secretary, or if there be more than one, the assistant secretaries 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 inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
5.13 Duties of Treasurer. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the Board.
5.14 Disbursements and Financial Reports. He or she shall disburse the funds of the corporation as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the president and the Board, at its regular meetings or when the Board so requires, an account of all his transactions as treasurer and of the financial condition of the corporation.
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5.15 Treasurer’s Bond. If required by the Board, the treasurer shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation.
5.16 Duties of Assistant Treasurer. The assistant treasurer, or if there shall be more than one, the assistant treasurers 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 treasurer or in the event of the treasurer’s inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
6.1 Stock Certificates. Every holder of stock in the corporation shall be entitled to have a certificate, signed by or in the name of the corporation by, the Chairman or Vice-Chairman of the Board, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation; provided that the Board may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares.
Certificates may be issued for partly paid shares and in such case upon the face or back of the certificates issued to represent any such partly paid shares, the total amount of the consideration to be paid therefor, and the amount paid thereon shall be specified.
If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualification, 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 that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate that the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
6.2 Facsimile Signatures. Any or all of the signatures on the certificate may be facsimile. In the event that any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, the certificate may be issued by the corporation with the same effect as if such officer, transfer agent or registrar were still acting as such at the date of issue.
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6.3 Lost Certificates. The Board may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen or destroyed. When authorizing such issuance of a new certificate or certificates, the Board may, in its discretion and as a condition precedent to the issuance, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
6.4 Transfer of Stock. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.
6.5 Fixing a Record Date. 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 may fix a record date that shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the Board may fix a new record date for the adjourned meeting.
6.6 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, to vote as such owner, to hold liable for calls and assessments a 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 any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
7.1 Dividends. Dividends upon the capital stock of the corporation, if any, subject to the provisions of the certificate of incorporation, may be declared by the Board at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to the provisions of the certificate of incorporation.
7.2 Reserve for Dividends. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their sole discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purposes as the directors think conducive to the interests of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created.
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7.3 Checks. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the Board may from time to time designate.
7.4 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the Board.
7.5 Corporate Seal. The Board may adopt a corporate seal having inscribed thereon the name of the corporation, the year of its organization and the words “Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.
7.6 Indemnification.
(a) Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law, any individual (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or an individual for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to employee benefit plans, its participants or beneficiaries, against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Covered Person in connection therewith, and such indemnification shall continue as to a Covered Person who has ceased to be a director or officer and shall inure to the benefit of the Covered Person’s heirs, executors and administrators. Notwithstanding the foregoing, except as otherwise provided in Section 7.3, the corporation shall be required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) was authorized in the specific case by the Board.
(b) Prepayment of Expenses. The corporation shall, to the fullest extent not prohibited by applicable law, pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending or otherwise participating in any Proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should ultimately be determined that such Covered Person is not entitled to be indemnified under this Article VII or otherwise.
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(c) Claims. If (a) a claim for indemnification under this Article VII is not paid in full within sixty (60) days after a written claim therefor by the Covered Person has been received by the corporation or (b) a claim for advancement of expenses under this Article VII is not paid in full within twenty (20) days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense (including attorneys’ fees) of prosecuting such claim. In any such action, the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law. Neither the failure of the corporation to have made a determination prior to the commencement of such action that indemnification of the Covered Person is proper in the circumstances because the Covered Person has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the corporation that the Covered Person has not met such applicable standard of conduct, shall create a presumption that the Covered Person has not met such applicable standard.
(d) Non-Exclusivity of Rights. The rights of indemnification and advancement of expenses conferred by this Article VII 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, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
(e) Insurance. The corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the corporation would have the power to indemnify such person under the DGCL
(f) Indemnification of Employees and Agents. The corporation may, to the extent authorized from time to time by the Board, provide rights to indemnification and advancement of expenses to employees and agents of the corporation.
(g) Indemnification Agreements. The corporation may enter into indemnification agreements with any director, officer, employee or agent of the corporation or any person serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
(h) Effect of Amendment. Any amendment, repeal or modification of this Article VII shall not adversely affect any right or protection of a current or former director or officer of the corporation existing at the time of such amendment, repeal or modification.
(i) Certain Terms. For purposes of this Article VII: (a) references to the “corporation” shall include any constituent corporation absorbed in a merger or consolidation; (b) references to “other enterprise” shall include employee benefit plans; (c) references to “fines” shall include any excise taxes assessed with respect to an employee benefit plan; and (d) references to service “at the request of the corporation” shall include service with respect to an employee benefit plan, its participants and beneficiaries.
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CERTIFICATE OF INCORPORATION GOVERNS
7.7 Conflicts with Certificate of Incorporation. In the event of any conflict between the provisions of the corporation’s certificate of incorporation and these Bylaws, the provisions of the certificate of incorporation shall govern.
ARTICLE VIII
AMENDMENTS
These Bylaws may be altered, amended or repealed, or new bylaws may be adopted by the stockholders or by the Board, when such power is conferred upon the Board by the certificate of incorporation at any regular meeting of the stockholders or of the Board or at any special meeting of the stockholders or of the Board if notice of such alteration, amendment, repeal or adoption of new bylaws be contained in the notice of such special meeting. If the power to adopt, amend or repeal bylaws is conferred upon the Board by the certificate of incorporation, it shall not divest or limit the power of the stockholders to adopt, amend or repeal bylaws.
ARTICLE IX
LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation of or otherwise assist any officer or other employee of the corporation or of its subsidiaries, including any officer or employee who is a director of the corporation or its subsidiaries, whenever, in the judgment of the Board, such loan, guarantee or assistance may reasonably be expected to benefit the corporation. The loan, guarantee or other assistance may be with or without interest and may be unsecured or secured in such manner as the Board shall approve, including a pledge of shares of stock of the corporation. Nothing in these Bylaws shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.
ARTICLE X
RECORDS AND REPORTS
The application and requirements of Section 1501 of the California Corporations Code are hereby expressly waived to the fullest extent permitted thereunder.
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