Palatin Technologies Inc 8-K, filed Mar 12, 2021
Palatin Technologies Inc (PTN)
8-K
2021-03-12
For: 2021-03-08
View Original
Added on
April 06, 2026
About this 8-K
Palatin Technologies Inc filed this 8-K on March 12, 2021, reporting on events of March 8, 2021.
Items reported
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act Of
1934
Date of
Report (Date of earliest event reported): March 8, 2020
Palatin Technologies, Inc.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
001-15543
|
95-4078884
|
|
(State
or other jurisdiction
|
(Commission
|
(IRS
employer
|
|
of
incorporation)
|
File
Number)
|
identification
number)
|
|
4B Cedar Brook Drive, Cranbury, NJ
|
08512
|
|
(Address
of principal executive offices)
|
(Zip
Code)
|
Registrant's
telephone number, including area code: (609) 495-2200
Not Applicable
(Former
name or former address, if changed since last report.)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2.
below):
[ ]
Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
[ ]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
|
Title
of Each Class
|
Trading
Symbol
|
Name of
Each Exchange
on
Which Registered
|
|
Common Stock, par value $.01 per share
|
PTN
|
NYSE American
|
Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of
1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If an
emerging growth company, indicate by checkmark 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. ☐
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
(a)
Amendment to Bylaws
On and
effective March 8, 2021, by unanimous consent the Board of
Directors (the “Board”) of Palatin Technologies, Inc.
(the “Company”) amended and restated the Bylaws of the
Company (the “Amended Bylaws”). Among other matters,
the Amended Bylaws amend Article I, providing clarifying and
technical amendments to relating to the registered office; amend
Article II, relating to meetings of stockholders, including
provisions for holding meetings by webcast, and for holding special
meetings and notice to stockholders; amend Article III, relating to
the Board; amend Article IV, providing clarify and technical
amendments relating to officers; amend Article V, relating to
contracts and other documents; amend Article VI, relating to shares
and transfer of shares; amend Article VIII, providing that the
fiscal year ends on the thirtieth day of June, which has been the
fiscal year of the Company since at least 1996; amend Article IX,
relating to indemnification and insurance; add a new Article X,
relating to forum selection and providing that the sole and
exclusive forum for derivative, breach of fiduciary, claims arising
under the General Corporation Law of the State of Delaware, and
similar actions shall be in a state court located within the State
of Delaware, and providing for a federal forum for Securities Act
claims; and amend Article XI (formerly Article X), relating to
amendments to the Bylaws, providing that any stockholder amendment
or repeal of the Bylaws shall require the affirmative vote of
holders of a majority in voting power of the outstanding shares of
the Company.
The
foregoing description of the Amended Bylaws does not purport to be
complete and is qualified in its entirety by the full text of the
Amended Bylaws, a copy of which is attached hereto as Exhibit 3.1
and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits:
Amended and
Restated Bylaws
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.
|
|
PALATIN TECHNOLOGIES, INC.
|
|
|
|
|
|
|
|
|
Date: March 12,
2020
|
By:
|
/s/ Stephen T.
Wills
|
|
|
|
|
Stephen T. Wills,
CPA, MST
|
|
|
|
|
Executive Vice
President, Chief Financial Officer and
Chief Operating
Officer
|
|
EXHIBIT INDEX
Amended and
Restated Bylaws
Exhibit
3.1
AMENDED AND RESTATED BY-LAWS OF
PALATIN TECHNOLOGIES, INC.
(Adopted
on March 8, 2021)
ARTICLE I
OFFICES
SECTION
1.01. Registered
Office. The address of the registered office of PALATIN
TECHNOLOGIES, INC. (the “Corporation”) in the
State of Delaware, and the name of its registered agent at such
address, shall be as set forth in the certificate of incorporation
of the Corporation (as the same may be amended and/or restated from
time to time, the “Certificate of
Incorporation”).
SECTION
1.02. Other
Offices. The Corporation may also have an office or offices
at any other place or places within or 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 from time to
time require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION
2.01. Annual
Meetings. The annual meeting of stockholders of the
Corporation for the election of directors of the Corporation
(“Directors”) and for the
transaction of such other business as may properly come before such
meeting shall be held at such place, if any, date and time as shall
be fixed by the Board. The Board may, in its sole discretion,
determine that the annual meeting shall not be held at any place,
but may instead be held solely by means of remote communication,
including by webcast, as described in Section 2.11 of these
Amended and Restated By-laws (as the same may be amended and/or
restated from time to time, the “Bylaws”) in accordance
with Section 211(a)(2) of the General Corporation Law of the
State of Delaware (the “DGCL”). The Board may
postpone, reschedule or cancel any annual meeting of stockholders
previously scheduled by the Board.
SECTION
2.02. Special
Meetings. Special meetings of stockholders for any purpose
or purposes may be called by the Board or the Chairman of the Board
and shall be held at such place, if any, date and time as shall be
determined by the Board. The Board may, in its sole discretion,
determine that special meetings of stockholders shall not be held
at any place, but may instead be held solely by means of remote
communication as described in Section 2.11 of these Bylaws in
accordance with Section 211(a)(2) of the DGCL. The Board may
postpone, reschedule or cancel any special meeting of stockholders
previously scheduled by the Board or the Chairman of the
Board.
SECTION
2.03. Notice of
Meetings. (a) Except as otherwise provided by law or the
Certificate of Incorporation, notice of each annual or special
meeting of stockholders stating the place, if any, date and time of
such meeting and, in the case of a special meeting, the purpose or
purposes for which such meeting is to be held, shall be given in
accordance with Section 232 of the DGCL to each stockholder
entitled to vote thereat, not less than 10 nor more than 60 days
before the date of such meeting. If mailed, such notice shall be
deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such
stockholder’s address as it appears on the records of the
Corporation.
1
SECTION
2.04. Waiver of
Notice. Notice of any annual or special meeting of
stockholders need not be given to any stockholder who files a
waiver of notice in writing or by electronic transmission with the
Secretary, whether before or after such meeting. Neither the
business to be transacted at, nor the purpose of, any meeting of
stockholders need be specified in any waiver of notice thereof.
Attendance of a stockholder at a meeting, in person or by proxy,
shall constitute a waiver of notice of such meeting, except when
such stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business on the grounds that the notice of such meeting was
inadequate or improperly given.
SECTION
2.05. Adjournments.
The presiding officer of any meeting of stockholders shall have the
right and authority to convene and (for any or no reason) to recess
and/or adjourn the meeting. When any annual meeting or special
meeting of stockholders is adjourned to another hour, date or
place, if any, notice need not be given of the adjourned meeting if
the hour, date and place, if any, thereof, and the means of remote
communications, if any, by which stockholders and proxy holders may
be deemed to be present in person and vote at such adjourned
meeting are announced at the meeting at which the adjournment is
taken; provided, however, that (i) if the adjournment is for more
than 30 days, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting and each
stockholder who, by law or under the Certificate of Incorporation
or these Bylaws, is entitled to such notice and (ii) if after the
adjournment a new record date for stockholders entitled to vote is
fixed for the adjourned meeting, the Board shall fix a new record
date for notice of such adjourned meeting in accordance with
Section 213(a) of the DGCL and these Bylaws and shall give notice
of the adjourned meeting to each stockholder entitled to vote at
such adjourned meeting and each stockholder who, by law or under
the Certificate of Incorporation or these Bylaws, is entitled to
such notice. At the adjourned meeting, any business may be
transacted which might have been transacted at the original
meeting.
SECTION
2.06. Quorum.
Except as otherwise provided by law or the Certificate of
Incorporation, holders of a majority in voting power of outstanding
shares of capital stock entitled to vote thereat, present in person
or by proxy, shall constitute a quorum for the transaction of
business at all meetings of stockholders, whether annual or
special. If, however, such quorum shall not be present in person or
by proxy at any meeting of stockholders, the person presiding over
the meeting or the stockholders entitled to vote thereat may
adjourn the meeting from time to time in accordance with Section
2.05 hereof until a quorum shall be present in person or by proxy.
Where a separate vote by a class or classes or series is required,
a majority in voting power of the outstanding shares of such class
or classes or series, present in person or represented by proxy,
shall constitute a quorum entitled to take action with respect to
that vote on that matter.
SECTION
2.07. Voting.
Except as otherwise provided by law or the Certificate of
Incorporation, each stockholder shall be entitled to one vote for
each Share held of record by such stockholder. Except as otherwise
provided by law, the Certificate of Incorporation or these Bylaws,
when a quorum is present at any meeting of stockholders, any
question brought before the meeting shall be decided by the
affirmative vote of the holders of a majority of the votes cast for
or against such question.
2
SECTION
2.08. Proxies. Each
stockholder entitled to vote at a meeting of stockholders or to
express, in writing, consent to or dissent from any action of
stockholders without a meeting may authorize another person or
persons to act for such stockholder by proxy. Such proxy shall be
filed with the Secretary before such meeting of stockholders or
such action of stockholders without a meeting, at such time as the
Board may require. No proxy shall be voted or acted upon more than
three years from its date, unless the proxy provides for a longer
period.
SECTION
2.09. Stockholders’
Consent in Lieu of Meeting; Record Dates. (a) Unless
otherwise restricted by the Certificate of Incorporation, any
action required by the General Corporation Law to be taken at any
annual or special meeting of stockholders, and any action which may
be taken at any annual or special meeting of stockholders, may be
taken without a meeting, without prior notice and without a vote,
if a consent setting forth the action so taken shall be signed by
stockholders having not less than the minimum number of votes
necessary to authorize or take such action at a meeting at which
all stockholders entitled to vote thereon were present and voted
and delivered in accordance with applicable law and these
Bylaws.
(b) In
order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the
Board may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is
adopted by the Board, and which date shall not be more than ten
(10) days after the date upon which the resolution fixing the
record date is adopted by the Board. Any stockholder seeking to
have the stockholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request that the
Board fix a record date. The Board shall promptly, but in all
events within ten (10) days after the date on which such written
notice is received, adopt a resolution fixing the record date
(unless a record date has previously been fixed by the Board
pursuant to the first sentence of this Section 2.09(b)). If no
record date has been fixed by the Board pursuant to the first
sentence of this Section 2.09(b) or otherwise within ten (10) days
after the date on which such written notice is received, the record
date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the
Board is required by applicable law, shall be the first date after
the expiration of such ten (10) day time period on which a consent
setting forth the action taken or proposed to be taken is delivered
to the Corporation by delivery in accordance with applicable law.
If no record date has been fixed by the Board pursuant to the first
sentence of this Section 2.09(b), the record date for determining
stockholders entitled to consent to corporate action without a
meeting if prior action by the Board is required by applicable law
shall be at the close of business on the date on which the Board
adopts the resolution taking such prior action.
(c) In
the event of the delivery, in the manner provided by this Section
2.09 and applicable law, to the Corporation of a consent or
consents to take corporate action and/or any related revocation or
revocations, the Corporation shall engage independent inspectors of
elections for the purpose of performing promptly a ministerial
review of the validity of the consents and revocations. For the
purpose of permitting the inspectors to perform such review, no
action by consent of stockholders without a meeting shall be
effective until such inspectors have completed their review,
determined that the requisite number of valid and unrevoked
consents delivered to the Corporation in accordance with this
Section 2.09 and applicable law have been obtained to authorize or
take the action specified in the consents, and certified such
determination for entry in the records of the Corporation kept for
the purpose of recording the proceedings of meetings of
stockholders. Nothing contained in this Section 2.09(c) shall in
any way be construed to suggest or imply that the Board or any
stockholder shall not be entitled to contest the validity of any
consent or revocation thereof, whether before or after such
certification by the independent inspectors, or to take any other
action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto, and
the seeking of injunctive relief in such litigation).
3
(d) No
written consent shall be effective to take the corporate action
referred to therein unless, within sixty (60) days after the first
date a written consent is received in accordance with this Section
2.09, a valid consent or valid consents of stockholders signed by a
sufficient number of stockholders to take such action are delivered
to the Corporation in the manner prescribed in this Section 2.09
and applicable law, and not revoked.
(e) In
order that the Corporation may determine the stockholders entitled
to notice of any meeting of stockholders or any adjournment
thereof, the Board may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record
date is adopted by the Board, and which record date shall, unless
otherwise required by law, not be more than sixty (60) nor less
than ten (10) days before the date of such meeting. If the Board so
fixes a date, such date shall also be the record date for
determining the stockholders entitled to vote at such meeting
unless the Board determines, at the time it fixes such record date,
that a later date on or before the date of the meeting shall be the
date for making such determination. If no record date is fixed by
the Board, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided,
however, that the Board may
fix a new record date for determination of stockholders entitled to
vote at the adjourned meeting, and in such case shall also fix as
the record date for stockholders entitled to notice of such
adjourned meeting the same or an earlier date as that fixed for
determination of stockholders entitled to vote in accordance
herewith at the adjourned meeting.
(f) In
order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or
allotment of any rights, or 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, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date
shall not be more than sixty (60) days prior to such action. If no
such record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business
on the day on which the Board adopts the resolution relating
thereto.
4
SECTION
2.10. Notice of
Stockholder Business and Nominations.
(A)
Annual Meetings of
Stockholders.
(1)
Nominations of persons for election to the Board and the proposal
of other business to be considered by the stockholders may be made
at an annual meeting of stockholders only (a) pursuant to the
Corporation’s notice of meeting (or any supplement thereto)
delivered pursuant to Section 2.03 of these Bylaws, (b) by or at
the direction of the Board or any authorized committee thereof or
(c) by any stockholder of the Corporation who is entitled to vote
at the meeting, who complied with the notice procedures set forth
in paragraphs (A)(2) and (A)(3) of this Section 2.10 and who was a
stockholder of record at the time such notice is delivered to the
Secretary of the Corporation.
(2) For
nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this Section 2.10, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation, and,
in the case of business other than nominations of persons for
election to the Board, such other business must constitute a proper
matter for stockholder action. To be timely, a stockholder’s
notice shall be delivered to the Secretary of the Corporation at
the principal executive offices of the Corporation not less than
ninety (90) days nor more than one hundred and twenty (120) days
prior to the first anniversary of the preceding year’s annual
meeting; provided,
however, that in the event
that the date of the annual meeting is advanced by more than
thirty (30) days, or delayed by more than seventy (70) days,
from the anniversary date of the previous year’s meeting, or
if no annual meeting was held in the preceding year, notice by the
stockholder to be timely must be so delivered not earlier than the
close of business on the one hundred and twentieth (120th) day
prior to such annual meeting and not later than the close of
business on the later of the ninetieth (90th) day prior to such
annual meeting or the tenth (10th) day following the day on which
public announcement of the date of such meeting is first made by
the Corporation. Public announcement of an adjournment or
postponement of an annual meeting shall not commence a new time
period (or extend any time period) for the giving of a
stockholder’s notice. Notwithstanding anything in this
Section 2.10(A)(2) to the contrary, if the number of directors to
be elected to the Board at an annual meeting is increased and there
is no public announcement by the Corporation naming all of the
nominees for director or specifying the size of the increased Board
at least one hundred (100) calendar days prior to the first
anniversary of the prior year’s annual meeting of
stockholders, then a stockholder’s notice required by this
Section shall be considered timely, but only with respect to
nominees for any new positions created by such increase, if it is
received by the Secretary of the Corporation not later than the
close of business on the tenth (10th) calendar day following the
day on which such public announcement is first made by the
Corporation.
5
(3) A
stockholder’s notice delivered pursuant to this Section 2.10
shall set forth: (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, all
information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in
an election contest, or is otherwise required, in each case
pursuant to Section 14(a) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and the
rules and regulations promulgated thereunder, including such
person’s written consent to being named in the
Corporation’s proxy statement as a nominee of the stockholder
and to serving as a director if elected; (b) as to any other
business that the stockholder proposes to bring before the meeting,
a brief description of the business desired to be brought before
the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and, in the
event that such business includes a proposal to amend these Bylaws,
the language of the proposed amendment), the reasons for conducting
such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on
whose behalf the proposal is made; (c) as to the stockholder giving
the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation’s books and
records, and of such beneficial owner, (ii) the class or series and
number of shares of capital stock of the Corporation that are
owned, directly or indirectly, beneficially and of record by such
stockholder and such beneficial owner, (iii) a representation that
the stockholder is a holder of record of the stock of the
Corporation at the time of the giving of the notice, will be
entitled to vote at such meeting and will appear in person or by
proxy at the meeting to propose such business or nomination, (iv) a
representation whether the stockholder or the beneficial owner, if
any, will be or is part of a group that will (x) deliver a proxy
statement and/or form of proxy to holders of at least the
percentage of the voting power of the Corporation’s
outstanding capital stock required to approve or adopt the proposal
or elect the nominee and/or (y) otherwise solicit proxies or votes
from stockholders in support of such proposal or nomination, (v) a
certification regarding whether such stockholder and beneficial
owner, if any, have complied with all applicable federal, state and
other legal requirements in connection with the stockholder’s
and/or beneficial owner’s acquisition of shares of capital
stock or other securities of the Corporation and/or the
stockholder’s and/or beneficial owner’s acts or
omissions as a stockholder of the Corporation and (vi) any other
information relating to such stockholder and beneficial owner, if
any, required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies
for, as applicable, the proposal and/or for the election of
directors in an election contest pursuant to and in accordance with
Section 14(a) of the Exchange Act and the rules and regulations
promulgated thereunder; (d) a description of any agreement,
arrangement or understanding with respect to the nomination or
proposal and/or the voting of shares of any class or series of
stock of the Corporation between or among the stockholder giving
the notice, the beneficial owner, if any, on whose behalf the
nomination or proposal is made, any of their respective affiliates
or associates and/or any others acting in concert with any of the
foregoing (collectively, “proponent persons”); and
(e) a description of any agreement, arrangement or understanding
(including without limitation any contract to purchase or sell,
acquisition or grant of any option, right or warrant to purchase or
sell, swap or other instrument) to which any proponent person is a
party, the intent or effect of which may be (i) to transfer to or
from any proponent person, in whole or in part, any of the economic
consequences of ownership of any security of the Corporation, (ii)
to increase or decrease the voting power of any proponent person
with respect to shares of any class or series of stock of the
Corporation and/or (iii) to provide any proponent person, directly
or indirectly, with the opportunity to profit or share in any
profit derived from, or to otherwise benefit economically from, any
increase or decrease in the value of any security of the
Corporation. A stockholder providing notice of a proposed
nomination for election to the Board or other business proposed to
be brought before a meeting (whether given pursuant to this
paragraph (A)(3) or paragraph (B) of this Section 2.10 of these
Bylaws) shall update and supplement such notice from time to time
to the extent necessary so that the information provided or
required to be provided in such notice shall be true and correct
(x) as of the record date for determining the stockholders entitled
to notice of the meeting and (y) as of the date that is fifteen
(15) days prior to the meeting or any adjournment or postponement
thereof, provided that if
the record date for determining the stockholders entitled to vote
at the meeting is less than fifteen (15) days prior to the meeting
or any adjournment or postponement thereof, the information shall
be supplemented and updated as of such later date. Any such update
and supplement shall be delivered in writing to the Secretary of
the Corporation at the principal executive offices of the
Corporation not later than five (5) days after the record date for
determining the stockholders entitled to notice of the meeting (in
the case of any update and supplement required to be made as of the
record date for determining the stockholders entitled to notice of
the meeting), not later than ten (10) days prior to the date for
the meeting or any adjournment or postponement thereof (in the case
of any update or supplement required to be made as of fifteen (15)
days prior to the meeting or adjournment or postponement thereof)
and not later than five (5) days after the record date for
determining the stockholders entitled to vote at the meeting, but
no later than the day prior to the meeting or any adjournment or
postponement thereof (in the case of any update and supplement
required to be made as of a date less than fifteen (15) days prior
to the date of the meeting or any adjournment or postponement
thereof). The Corporation may require any proposed nominee to
furnish such other information as it may reasonably require to
determine the eligibility of such proposed nominee to serve as a
director of the Corporation and to determine the independence of
such director under the Exchange Act and rules and regulations
thereunder and applicable stock exchange rules.
6
(B)
Special Meetings of
Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation’s notice of meeting.
At any time that the stockholders are not prohibited from filling
vacancies or newly created directorships on the Board, nominations
of persons for election to the Board to fill any vacancy or
unfilled newly created directorship may be made at a special
meeting of stockholders at which any proposal to fill any vacancy
or unfilled newly created directorship is to be presented to the
stockholders (1) as provided in the stockholders Agreement, (2) by
or at the direction of the Board or any committee thereof or (3) by
any stockholder of the Corporation who is entitled to vote at the
meeting on such matters, who complies with the notice procedures
set forth in this Section 2.10 and who is a stockholder of record
at the time such notice is delivered to the Secretary of the
Corporation. In the event the Corporation calls a special meeting
of stockholders for the purpose of electing one or more directors
to fill any vacancy or newly created directorship on the Board, any
such stockholder entitled to vote in such election of directors may
nominate a person or persons (as the case may be) for election to
such position(s) as specified in the Corporation’s notice of
meeting if the stockholder’s notice as required by paragraph
(A)(2) of this Section 2.10 shall be delivered to the Secretary at
the principal executive offices of the Corporation not earlier than
the close of business on the one hundred twentieth (120th) day prior to such
special meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such
special meeting or the tenth (10th) day following the
day on which the Corporation first makes a public announcement of
the date of the special meeting at which directors are to be
elected. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new
time period (or extend any time period) for the giving of a
stockholder’s notice as described above.
(C)
General. (1) Only
such persons who are nominated in accordance with the procedures
set forth in this Section 2.10 shall be eligible to serve as
directors and only such business shall be conducted at an annual or
special meeting of stockholders as shall have been brought before
the meeting in accordance with the procedures set forth in this
Section. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the person presiding over the
meeting shall, in addition to making any other determination that
may be appropriate for the conduct of the meeting, have the power
and duty to determine whether a nomination or any business proposed
to be brought before the meeting was made or proposed, as the case
may be, in accordance with the procedures set forth in these Bylaws
and, if any proposed nomination or business is not in compliance
with these Bylaws, to declare that such defective proposal or
nomination shall be disregarded. The date and time of the opening
and the closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the
meeting by the chairman of the meeting. The Board may adopt by
resolution such rules and regulations for the conduct of the
meeting of stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by
the Board, the person presiding over the meeting shall have the
right and authority to convene and (for any or no reason) to recess
and/or adjourn the meeting, to prescribe such rules, regulations
and procedures and to do all such acts as, in the judgment of such
person, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board or
prescribed by the person presiding over the meeting, may include,
without limitation, the following: (i) the establishment of an
agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of
those present; (iii) limitations on attendance at or participation
in the meeting to stockholders entitled to vote at the meeting,
their duly authorized and constituted proxies or such other persons
as the person presiding over the meeting shall determine; (iv)
restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants and on shareholder approvals.
Notwithstanding the foregoing provisions of this Section 2.10,
unless otherwise required by law, if the stockholder (or a
qualified representative of the stockholder) does not appear at the
annual or special meeting of stockholders of the Corporation to
present a nomination or business, such nomination shall be
disregarded and such proposed business shall not be transacted,
notwithstanding that proxies in respect of such vote may have been
received by the Corporation. For purposes of this Section 2.10, to
be considered a qualified representative of the stockholder, a
person must be a duly authorized officer, manager or partner of
such stockholder or must be authorized by a writing executed by
such stockholder or an electronic transmission delivered by such
stockholder to act for such stockholder as proxy at the meeting of
stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing
or electronic transmission, at the meeting of stockholders. Unless
and to the extent determined by the Board or the person presiding
over the meeting, the meeting of stockholders shall not be required
to be held in accordance with the rules of parliamentary
procedure.
7
(2)
Whenever used in these Bylaws, “public announcement”
shall mean disclosure (a) in a press release released by the
Corporation, provided that
such press release is released by the Corporation following its
customary procedures, is reported by the Dow Jones News Service,
Associated Press or comparable national news service, or is
generally available on internet news sites, or (b) in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act
and the rules and regulations promulgated thereunder.
(3)
Notwithstanding the foregoing provisions of this Section 2.10, a
stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations promulgated
thereunder with respect to the matters set forth in this Section
2.10; provided,
however, that, to the
fullest extent permitted by law, any references in these Bylaws to
the Exchange Act or the rules and regulations promulgated
thereunder are not intended to and shall not limit any requirements
applicable to nominations or proposals as to any other business to
be considered pursuant to these Bylaws (including paragraphs
(A)(1)(c) and (B) of this Section 2.10), and compliance with
paragraphs (A)(1)(c) and (B) of this Section 2.10 of these Bylaws
shall be the exclusive means for a stockholder to make nominations
or submit other business. Nothing in these Bylaws shall be deemed
to affect any rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon
liquidation to elect directors under specified
circumstances.
SECTION
2.11. List of Stockholders
Entitled To Vote. The Corporation shall prepare, at least
ten (10) days before every meeting of stockholders, a complete list
of the stockholders entitled to vote at the meeting (provided, however, if the record date for
determining the stockholders entitled to vote is less than ten (10)
days before the date of the meeting, the list shall reflect the
stockholders entitled to vote as of the tenth (10th) day before the
meeting date), arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting at least ten (10) days prior to the meeting (a) on a
reasonably accessible electronic network; provided that the information required
to gain access to such list is provided with the notice of meeting
or (b) 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 a list of
stockholders entitled to vote at the meeting shall be produced and
kept at the time and place of the meeting during the whole time
thereof and may be examined by any stockholder who is present. If
the meeting is to be held solely by means of remote communication,
then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably
accessible electronic network, and the information required to
access such list shall be provided with the notice of the meeting.
Except as otherwise provided by law, the stock ledger shall be the
only evidence as to who are the stockholders entitled to examine
the list of stockholders required by this Section 2.11 or to vote
in person or by proxy at any meeting of stockholders.
8
SECTION
2.12. Delivery to the
Corporation. Whenever this Article II requires one or more
persons (including a record or beneficial owner of stock) to
deliver a document or information to the Corporation or any
officer, employee or agent thereof (including any notice, request,
questionnaire, revocation, representation or other document or
agreement), unless the Corporation elects otherwise, such document
or information shall be in writing exclusively (and not in an
electronic transmission) and shall be delivered exclusively by hand
(including, without limitation, overnight courier service) or by
certified or registered mail, return receipt requested, and the
Corporation shall not be required to accept delivery of any
document not in such written form or so delivered.
SECTION
2.13. Inspectors of
Election. The Corporation may, and shall if required by law,
in advance of any meeting of stockholders, appoint one or more
inspectors of election, who may be employees of the Corporation, to
act at the meeting or any adjournment thereof and to make a written
report thereof. The Corporation may designate one or more persons
as alternate inspectors to replace any inspector who fails to act.
In the event that no inspector so appointed or designated is able
to act at a meeting of stockholders, the chairman of the meeting
shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties,
shall take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of his
or her ability. The inspector or inspectors so appointed or
designated shall (i) ascertain the number of shares of capital
stock of the Corporation outstanding and the voting power of each
such share, (ii) determine the shares of capital stock of the
Corporation represented at the meeting and the validity of proxies
and ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v)
certify their determination of the number of shares of capital
stock of the Corporation represented at the meeting and such
inspectors’ count of all votes and ballots. Such
certification and report shall specify such other information as
may be required by law. In determining the validity and counting of
proxies and ballots cast at any meeting of stockholders of the
Corporation, the inspectors may consider such information as is
permitted by applicable law. No person who is a candidate for an
office at an election may serve as an inspector at such
election.
ARTICLE III
BOARD OF DIRECTORS
SECTION
3.01. General
Powers. Except as otherwise provided by the Certificate of
Incorporation or the General Corporation Law, the business and
affairs of the Corporation shall be managed by or under the
direction of the Board.
SECTION
3.02. Number, Term of
Office and Election. The total number of Directors
constituting the Board shall be five or such other number as shall
be fixed from time to time by the Board. Directors need not be
stockholders. Each Director shall hold office from the date of his
her or election or appointment until the next annual meeting for
the election of Directors and until his or her successor is duly
elected and qualified, or until his or her earlier death or
resignation or removal. At each annual meeting of stockholders at
which a quorum is present, Directors shall be elected by a
plurality of the votes entitled to vote in the election of
Directors.
9
SECTION
3.03. Resignation.
Any Director may resign at any time by notice in writing or by
electronic transmission to the Corporation. Such resignation shall
take effect upon its delivery unless such notices specifies a later
effective date or specifies that it shall become effective upon the
happening of an event or events, in which case it shall be
effective at such later date or upon the happening of such event or
events. Unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make it
effective.
SECTION
3.04. Removal.
Except as otherwise provided by the Certificate of Incorporation or
applicable law, any or all of the Directors may be removed, with or
without cause, by vote of the holders of a majority in voting power
of the outstanding shares entitled to vote generally in the
election of Directors.
SECTION
3.05. Vacancies.
Except as otherwise provided by the Certificate of Incorporation or
required by applicable law, any vacancy occurring on the Board for
any reason (whether the death, resignation or removal of any
Director) and any newly created directorship, shall be filled
solely by a majority of Directors then in office, even though less
than a quorum.
SECTION
3.06. Meetings.
(a)
Annual Meetings. As soon as
practicable after each annual meeting for the election of
Directors, the Board shall meet for the purpose of organization and
the transaction of other business.
(b)
Other Meetings. Other
meetings of the Board shall be held at such times as the Chairman
of the Board, the President, the Secretary or a majority of the
Directors then in office shall from time to time
determine.
(c)
Notice of Meetings. The
Secretary shall give notice to each Director of each meeting of the
Board, which notice shall state the place, if any, date, and time
of such meeting. Notice of each such meeting may be given
personally, orally (including by telephone), by mail, by overnight
courier, or by electronic transmission. If given by mail or
overnight courier, notice shall be given at least three days before
the day on which such meeting is to be held. If given personally,
orally or by electronic transmission, notice shall be given at
least twenty-four (24) hours in advance of the meeting. A waiver of
notice in writing or by electronic transmission given by the
Director entitled to notice, whether before or after the time of
the meeting referred to in such waiver, shall be deemed equivalent
to notice. Neither the business to be transacted at, nor the
purpose any meeting of the Board need be specified in any waiver of
notice thereof. Attendance of a Director at a meeting of the Board
shall constitute a waiver of notice of such meeting, except as
provided by law.
(d)
Place of Meetings; Meetings by
Conference Telephone or Similar Communications Equipment.
The Board may hold its meetings at such place or places within or
without the State of Delaware as the Board or the Chairman of the
Board may from time to time determine, or as shall be designated in
the respective notices or waivers of notice of such meetings. Any
one or more members of the Board, or of any committee thereof, may
participate in a meeting of the Board or such committee 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 in a meeting by such means shall
constitute presence in person at such meeting.
10
(e)
Quorum and Manner of
Acting. A majority of the total number of Directors
constituting the Board shall be present in person at any meeting of
the Board in order to constitute a quorum for the transaction of
business at such meeting, and the vote of a majority of those
Directors present at any such meeting at which a quorum is present
shall be necessary for the passage of any resolution or act of the
Board, except as otherwise expressly required by law, the
Certificate of Incorporation or these Bylaws. In the absence of a
quorum for any such meeting, a majority of the Directors present
thereat may adjourn such meeting from time to time until a quorum
shall be present.
(f)
Organization. At each
meeting of the Board, one of the following shall act as chairman of
the meeting and preside, in the following order of precedence: (i)
the Chairman of the Board; (ii) the President; (iii) any Director
chosen by a majority of the Directors present. The Secretary or, in
the case of his absence, any person (who shall be an Assistant
Secretary, if an Assistant Secretary is present) whom the chairman
of the meeting shall appoint shall act as secretary of such meeting
and keep the minutes thereof.
SECTION
3.07. Committees of the
Board. The Board may, by resolution passed by a majority of
the whole Board, designate one or more committees, each committee
to consist of one or more Directors. 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 such
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 they constitute
a quorum, may unanimously appoint another Director to act at the
meeting in the place of any such absent or disqualified member. Any
committee of the Board, to the extent provided in the resolution of
the Board designating such committee, 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 which may require
it; provided, however, that no such committee shall have such power
or authority in reference to the following: (i) approving or
adopting, or recommending to the stockholders, any action or matter
(other than the election or removal of directors) expressly
required by the General Corporation Law to be submitted to
stockholders for approval or (ii) adopting, amending or repealing
the Bylaws.
SECTION
3.08. Directors’
Consent in Lieu of Meeting. 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, without prior notice and without a
vote, if a consent in writing or by electronic transmission setting
forth the action so taken, shall be given by all the members of the
Board or such committee. After an action is taken, the consent or
consents, or electronic transmission or transmissions, shall be
filed in the minutes of proceedings of the Board in accordance with
applicable law.
SECTION
3.09. Compensation.
Unless otherwise restricted by the Certificate of Incorporation,
the Board may determine the compensation of Directors. In addition,
as determined by the Board, Directors may be reimbursed by the
Corporation for their expenses, if any, in the performance of their
duties as Directors. No such compensation or reimbursement shall
preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefor.
11
ARTICLE IV
OFFICERS
SECTION
4.01. Officers. The
officers of the Corporation shall be the Chairman of the Board, the
President, the Secretary and a Treasurer and may include one or
more Vice Presidents and one or more Assistant Secretaries and an
Assistant Treasurer. Any two or more offices may be held by the
same person.
SECTION
4.02. Authority and
Duties. All officers 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, by resolution of
the Board.
SECTION
4.03. Term of Office.
Resignation and Removal. (a) Each officer shall be appointed
by the Board and shall hold office for such term as may be
determined by the Board. Each officer shall hold office until his
successor has been appointed and qualified or his earlier death or
resignation or removal in the manner hereinafter provided. The
Board may require any officer to give security for the faithful
performance of his duties.
(b) Any
officer may resign at any time by giving notice in writing or by
electronic transmission to the Corporation. Such resignation shall
take effect upon its delivery unless such resignation provides that
it is effective at a later date or effective upon the happening of
an event or events, in which case it shall be effective at such
later date or upon the happening of such event or events. Unless,
otherwise specified therein, acceptance of such resignation shall
not be necessary to make it effective.
(c) All
officers and agents appointed by the Board shall be subject to
removal, with or without cause, at any time by the
Board.
SECTION
4.04. Vacancies.
Any vacancy occurring in any office of the Corporation, for any
reason, shall be filled by action of the Board.
SECTION
4.05. The Chairman.
The Chairman of the Board shall have the power to call special
meetings of stockholders, to call special meetings of the Board
and, if present, to preside at all meetings of stockholders and all
meetings of the Board. The Chairman of the Board shall perform all
duties incident to the office of Chairman of the Board and all such
other duties as may from time to time be assigned to him by the
Board or these Bylaws. The office of Chairman of the Board may be
filled by two individuals serving simultaneously and who shall be
referred to collectively as Co-Chairmen and who shall each
individually be referred to as a Co-Chairman.
SECTION
4.06. The
President. The President shall be the chief executive
officer of the Corporation and shall have general and active
management and control of the business and affairs of the
Corporation, subject to the control of the Board, and shall see
that all orders and resolutions of the Board are carried into
effect. The President shall perform all duties incident to the
office of President and all such other duties as may from time to
time be assigned to him by the Board or these Bylaws.
12
SECTION
4.07. Vice
Presidents. Vice Presidents, if any, in order of their
seniority or in any other order determined by the Board, shall
generally assist the President and perform such other duties as the
Board or the President shall prescribe, and in the absence or
disability of the President, shall perform the duties and exercise
the powers of the President.
SECTION
4.08. The
Secretary. The Secretary shall, to the extent practicable,
attend all meetings of the Board and all meetings of stockholders
and shall record all votes and the minutes of all proceedings in a
book to be kept for that purpose, and shall perform the same duties
for any committee of the Board when so requested by such committee.
The Secretary shall give or cause to be given notice of all
meetings of stockholders and of the Board, shall perform such other
duties as may be prescribed by the Board, the Chairman of the Board
or the President and shall act under the supervision of the
Chairman of the Board. The Secretary shall keep or arrange for the
keeping in safe custody the books and records of the Corporation
and shall perform all other duties incident to the office of
Secretary and such other duties as from time to time may be
assigned to him by the Board, the Chairman of the Board or the
President.
SECTION
4.09. Assistant
Secretaries. Assistant Secretaries of the Corporation, if
any, in order of their seniority or in any other order determined
by the Board, shall generally assist the Secretary and perform such
other duties as the Board or the Secretary shall prescribe, and, in
the absence or disability of the Secretary, shall perform the
duties and exercise the powers of the Secretary.
SECTION
4.10. Treasurer.
The Treasurer shall have the care and custody of a the funds of the
Corporation and shall deposit such funds in such banks or other
depositories as the Board, or any officer or officers, or any
officer and agent jointly, duly authorized by the Board, shall,
from time to time, direct or approve. The Treasurer shall disburse
the funds of the Corporation under the direction of the Board and
the President. The Treasurer shall keep a full and accurate account
of all moneys received and paid on account of the Corporation and
shall render a statement of his accounts whenever the Board, the
Chairman or the President shall so request. The Treasurer shall
perform all other necessary actions and duties in connection with
the administration of the financial affairs of the Corporation and
shall generally perform all the duties usually appertaining to the
office of treasurer of a corporation.
SECTION
4.11. Assistant
Treasurer. The Assistant Treasurer of the Corporation shall
generally assist the Treasurer and perform such other duties as the
Board or the Treasurer shall prescribe, and, in the absence or
disability of the Treasurer, shall perform the duties and exercise
the powers of the Treasurer.
ARTICLE V
CONTRACTS AND OTHER DOCUMENTS
SECTION
5.01. Contracts and Other
Documents. The Board, except as otherwise provided in these
Bylaws, may authorize any officer or officers, or agent or agents,
to enter into any contract or execute any instrument in the name of
and on behalf of the Corporation; such authority may be general or
confined to specific instances. Unless so authorized or ratified by
the Board or within the agency power of an officer, no officer,
agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit
or to render it liable for any purpose or for any amount. Except as
provided in [Section 2.12,] any document, including, without
limitation, any consent, agreement, certificate or instrument,
required by the DGCL, the Certificate of Incorporation or these
Bylaws to be executed by any officer, director, stockholder,
employee or agent of the Corporation may be executed using a
facsimile or other form of electronic signature to the fullest
extent permitted by applicable law. All other contracts,
agreements, certificates or instruments to be executed on behalf of
the Corporation may be executed using a facsimile or other form of
electronic signature to the fullest extent permitted by applicable
law.
13
SECTION
5.02. Execution of
Proxies. The Chairman or the President, or, in the absence
or disability of both of them, any Vice President, may authorize,
from time to time, the execution and issuance of proxies to vote
shares of stock or other securities of other corporations or
entities held by the Corporation and the execution of consents to
action taken or to be taken by any such corporation or other
entity. All such proxies and consents, unless otherwise authorized
by the Board, shall be signed in the name of the Corporation by the
Chairman, the President or any Vice President.
ARTICLE VI
SHARES AND TRANSFERS OF SHARES
SECTION
6.01. Certificates
Evidencing Shares. Shares of capital stock of the
Corporation shall represented by certificates; provided that the
Board may by resolution determine that some or all of the shares of
any class or series of capital stock may be uncertificated. Any
such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the
Corporation. Every holder of stock represented by a certificate
shall be entitled to have a certificate signed by, or in the name
of the Corporation by, any two authorized officers. Each of the
Chairman, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer and the Assistant Treasurer
shall be authorized to sign such certificates. Any or all of the
signatures on a certificate may be a facsimile. In the event any
such officer who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to hold such office or
to be employed by the Corporation before such certificate is
issued, such certificate may be issued by the Corporation with the
same effect as if such officer had held such office on the date of
issue.
SECTION
6.02. Transfers of
Shares. Registration of transfers of shares of capital stock
of the Corporation shall be made only in the stock ledger of the
Corporation upon request of the registered holder of such shares,
or of his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary, and, in the case of
certificated shares, upon the surrender of the certificate or
certificates evidencing such shares properly endorsed or
accompanied by a stock power duly executed, together with such
proof of the authenticity of signatures as the Corporation may
reasonably require.
SECTION
6.03. Addresses of
Stockholders. Each stockholder shall designate to the
Secretary an address at which notices of meetings and all other
corporate notices may be served or mailed to such stockholder, and,
if any stockholder shall fail to so designate such an address,
corporate notices may be served upon such stockholder by mail
directed to the mailing address, if any, as the same appears in the
stock ledger of the Corporation or at the last known mailing
address of such stockholder.
SECTION
6.04. Lost, Destroyed and
Mutilated Certificates. Each stockholder shall promptly
notify the Corporation of any loss, destruction or mutilation of
any certificate or certificates evidencing any share or shares of
capital stock of the Corporation held by such stockholder. The
Corporation may, in its discretion, issue a new certificate or
uncertificated shares in place of any certificate theretofore
issued by it and alleged to have been mutilated, lost, stolen or
destroyed, upon the surrender of the mutilated certificate or, in
the case of loss, theft or destruction of the certificate, upon
satisfactory proof of such loss, theft or destruction, and the
Corporation may, in its discretion, require the holder of the
shares evidenced by the lost, stolen or destroyed certificate or
such stockholder’s legal representative to give the
Corporation a bond sufficient to indemnify the Corporation against
any claim made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new
certificate or uncertificated shares.
14
SECTION
6.05. Regulations.
The Board may make such other rules and regulations as it may deem
expedient, not inconsistent with these Bylaws, concerning the
issue, transfer and registration of certificates evidencing shares
and of uncertificated shares.
ARTICLE VII
SEAL
SECTION
7.01. Seal. The
Board may approve and adopt a corporate seal, which shall be in the
form of a circle and shall bear the full name of the Corporation,
the year of its incorporation and the words “Corporate Seal
Delaware”.
ARTICLE VIII
FISCAL YEAR
SECTION
8.01. Fiscal Year.
The fiscal year of the Corporation shall end on the thirtieth day
of June of each year unless changed by resolution of the
Board.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
SECTION
9.01. Indemnification. (a) The
Corporation shall, to the fullest extent permitted by law,
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director or
officer of the Corporation or, while serving as a director or
officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
(each of the foregoing, a “covered person”), against
expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in
good faith and in a manner he 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 his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he 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 his conduct was unlawful. Notwithstanding the
foregoing, the Corporation shall not be required to indemnify a
covered person in connection with any action, suit or proceeding
(or part thereof) initiated by such covered person unless such
action, suit or proceeding (or part thereof) was authorized in
advance by the Board.
(b) To
the extent that a current or former director or officer of the
Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section
9.01(a) of these Bylaws, or in defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred
by him in connection therewith.
15
(c) Any
indemnification under Section 9.01(a) of these Bylaws (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 person seeking indemnification is proper in
the circumstances because such person has met the applicable
standard of conduct set forth in Section 9.01(a). Such
determination shall be made, with respect to a current director or
officer, (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a
quorum, (ii) a committee of such directors, or (iii) if there are
no such directors, or if such directors so direct, by independent
legal counsel in a written opinion.
(d)
Expenses (including attorneys’ fees) incurred by a covered
person in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such covered person to repay such amount if it shall ultimately
be determined that such covered person is not entitled to be
indemnified by the Corporation pursuant to this Article
IX.
(e) The
indemnification and advancement of expenses provided by, or granted
pursuant to, other Sections of this Article IX shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any law, the Certificate of Incorporation, agreement, vote of
stockholders or disinterested directors or otherwise, both as to
action in an official capacity and as to action in another capacity
while holding such office.
(f) For
purposes of this Article IX, references to “the
Corporation” shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents
so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article IX with respect to
the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence
had continued. Any reference to an officer of the Corporation in
this Article IX shall refer solely to the officers of the
Corporation appointed by the Board pursuant to Article IV hereof,
and any reference to an officer of any other enterprise shall refer
solely to a person appointed as an officer by the governing body of
such other enterprise pursuant to its governing documents. The fact
that an employee or agent who has not been so appointed as an
officer has been given the title “Vice President” or
any other title shall not result in such employee or agent being an
officer for purposes of this Article IX.
(g) For
purposes of this Article IX, references to “other
enterprises” shall include employee benefit plans; references
to “fines” shall include any excise taxes assessed on a
person with respect to an employee benefit plan; and references to
“serving at the request of the Corporation” shall
include any service as a director, officer, employee or agent of
the Corporation which imposes duties on, or involves service by,
such director, officer, employee or agent with respect to any
employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Article IX.
16
(h) The
indemnification and advancement of expenses provided by, or granted
pursuant to, this Article IX 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 a
person.
SECTION
9.02. Insurance.
The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or
not the Corporation would have the power to indemnify him against
such liability under the provisions of Section 145 of the General
Corporation Law.
ARTICLE
X
FORUM SELECTION
SECTION
10.01. Forum
Selection. Unless the Corporation consents in writing to the
selection of an alternative forum, the sole and exclusive forum for
any (i) derivative action or proceeding brought on behalf of the
Corporation, (ii) action asserting a claim of breach of a fiduciary
duty owed by any director, officer or other employee or stockholder
of the Corporation to the Corporation or the Corporation’s
stockholders, (iii) action asserting a claim against the
Corporation or any director, officer or other employee of the
Corporation arising pursuant to any provision of the General
Corporation Law, the Certificate of Incorporation or these Bylaws
(as either may be amended and/or restated from time to time) or as
to which the General Corporation Law confers jurisdiction on the
Court of Chancery of the State of Delaware or (iv) action asserting
a claim against the Corporation or any director, officer or
employee of the Corporation governed by the internal affairs
doctrine shall be a state court located within the State of
Delaware (or, if no state court located within the State of
Delaware has jurisdiction, the federal district court for the
District of Delaware). For the avoidance of doubt, this Section
10.01 of this Article X shall not apply to any action or proceeding
asserting a claim under the Securities Act of 1933 (the
“Securities
Act”) or the Exchange Act.
SECTION
10.02. Federal Forum for
Securities Act Claims. Unless the Corporation consents in
writing to the selections of an alternative forum, to the fullest
extent permitted by law, the federal district courts of the United
States of America shall be the exclusive forum for the resolution
of any complaint asserting a cause of action arising under the
Securities Act.
SECTION
10.03. Notice of this
Provision. Any person or entity purchasing or otherwise
acquiring any interest in shares of capital stock of the
Corporation shall be deemed to have notice of and consented to the
provisions of this Article X.
17
ARTICLE XI
AMENDMENTS
SECTION
11.01. Amendments.
Any provision of these Bylaws may be amended or repealed, and new
bylaws may be adopted, by the stockholders; provided that any such
amendment or repeal of these Bylaws by the stockholders, or any
such adoption of new bylaws by the stockholders, shall require the
affirmative vote of the holders of a majority in voting power of
the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors.
18