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BYLAWS
OF
DOUBLETWIST, INC.
ADOPTED AS OF APRIL 15, 2000
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TABLE OF CONTENTS
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PAGE
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Article I OFFICES............................................................................1
Section 1.1 Registered Office..................................................................1
Section 1.2 Other Offices......................................................................1
Article II DIRECTORS..........................................................................1
Section 2.1 Exercise of Corporate Powers.......................................................1
Section 2.2 Number.............................................................................1
Section 2.3 Need Not Be Stockholders...........................................................2
Section 2.4 Compensation.......................................................................2
Section 2.5 Election and Term of Office........................................................2
Section 2.6 Vacancies..........................................................................2
Section 2.7 Removal............................................................................2
Section 2.8 Powers and Duties..................................................................2
Article III MEETINGS OF DIRECTORS..............................................................6
Section 3.1 Place of Meetings..................................................................6
Section 3.2 Regular Meetings...................................................................6
Section 3.3 Special Meetings...................................................................6
Section 3.4 Notice of Special Meetings.........................................................6
Section 3.5 Quorum.............................................................................6
Section 3.6 Conference Telephone...............................................................7
Section 3.7 Waiver of Notice and Consent.......................................................7
Section 3.8 Action Without a Meeting...........................................................7
Section 3.9 Committees.........................................................................7
Article IV COMMITTEES.........................................................................7
Section 4.1 Appointment and Procedure..........................................................7
Section 4.2 Executive Committee Powers.........................................................8
Section 4.3 Powers of Other Committees.........................................................8
Section 4.4 Limitations on Powers of Committees................................................8
Article V OFFICERS...........................................................................8
Section 5.1 Election and Qualification.........................................................8
Section 5.2 Term of Office and Compensation....................................................9
Section 5.3 Chief Executive Officer............................................................9
Section 5.4 Chairman of the Board..............................................................10
Section 5.5 President..........................................................................10
Section 5.6 President Pro Tem..................................................................10
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TABLE OF CONTENTS
(CONTINUED)
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Section 5.7 Vice President.....................................................................10
Section 5.8 Secretary..........................................................................10
Section 5.9 Chief Financial Officer............................................................11
Section 5.10 Instruments in Writing.............................................................12
Article VI INDEMNIFICATION....................................................................12
Section 6.1 Third Party Actions................................................................12
Section 6.2 Actions by or in the Right of the Corporation......................................13
Section 6.3 Successful Defense.................................................................13
Section 6.4 Determination of Conduct...........................................................13
Section 6.5 Payment of Expense in Advance......................................................14
Section 6.6 Indemnity not Exclusive............................................................14
Section 6.7 Insurance Indemnification..........................................................14
Section 6.8 The Corporation....................................................................14
Section 6.9 Employee Benefit Plans.............................................................14
Section 6.10 Continuation of Indemnification and Advancement of Expenses........................15
Article VII MEETINGS OF, AND REPORTS TO, STOCKHOLDERS..........................................15
Section 7.1 Place of Meetings..................................................................15
Section 7.2 Annual Meeting.....................................................................15
Section 7.3 Special Meeting....................................................................15
Section 7.4 Notice of Stockholders' Meeting....................................................16
Section 7.5 Advance Notice of Stockholder Nominees and Stockholder Business....................16
Section 7.6 Manner of Giving Notice; Affidavit of Notice.......................................17
Section 7.7 Quorum.............................................................................17
Section 7.8 Adjourned Meeting; Notice..........................................................17
Section 7.9 Conduct of Business................................................................18
Section 7.10 Voting.............................................................................18
Section 7.11 Waiver of Notice...................................................................18
Section 7.12 Stockholder Action by Written Consent without a Meeting............................19
Section 7.13 Record Date for Stockholder Notice, Voting, Giving Consents........................19
Section 7.14 Proxies............................................................................20
Section 7.15 List of Stockholders Entitled to Vote..............................................20
Section 7.16 Maintenance and Inspection of Records..............................................20
Section 7.17 Inspection by Directors............................................................21
Section 7.18 Annual Statement to Stockholders...................................................21
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Article VIII SHARES AND SHARE CERTIFICATES......................................................21
Section 8.1 Shares Held By the Company.........................................................21
Section 8.2 Certificates for Shares............................................................21
Section 8.3 Lost Certificates..................................................................22
Section 8.4 Restrictions on Transfer of Shares.................................................22
Article IX CONSTRUCTION OF BYLAWS WITH REFERENCE TO PROVISIONS OF LAW.........................23
Section 9.1 Bylaw Provisions Construed as Additional and Supplemental to Provisions of Law.....23
Section 9.2 Bylaws Provisions Contrary to or Inconsistent with Provisions of Law...............23
Article X CERTIFICATION, ADOPTION, AMENDMENT OR REPEAL OF BYLAWS.............................23
Section 10.1 By Stockholders....................................................................23
Section 10.2 By the Board of Directors..........................................................23
Section 10.3 Certification and Inspection of Bylaws.............................................24
Article XI RESTRICTIONS ON TRANSFERS TO COMPETITORS...........................................24
Section 11.1 Transfers to Competitors...........................................................24
Section 11.2 Transfers to Persons or Entities in the Pharmaceutical or Biotechnology Industry...24
Section 11.3 Termination of Restrictions........................................................24
Article XII RIGHT OF FIRST REFUSAL.............................................................24
Section 12.1 Right of First Refusal.............................................................24
Section 12.2 Notice of Proposed Transfer........................................................25
Section 12.3 Exercise of Right of First Refusal.................................................25
Section 12.4 Purchase Price.....................................................................25
Section 12.5 Payment............................................................................25
Section 12.6 Holder's Right to Transfer.........................................................25
Section 12.7 Exempt Transfers...................................................................26
Section 12.8 Termination of Right of First Refusal..............................................26
Article XIII GENERAL MATTERS....................................................................26
Section 13.1 Checks.............................................................................26
Section 13.2 Execution of Corporate Contracts and Instruments...................................26
Section 13.3 Dividends..........................................................................27
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Section 13.4 Fiscal Year........................................................................27
Section 13.5 Seal...............................................................................27
Section 13.6 Transfer of Stock..................................................................27
Section 13.7 Stock Transfer Agreements..........................................................27
Section 13.8 Registered Stockholders............................................................27
Article XIV AMENDMENTS.........................................................................28
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BYLAWS
OF
DOUBLETWIST, INC.
Adopted as of April 15, 2000
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE. The registered office of this
corporation (the "Company") shall be in the City of Wilmington, County of New
Castle, State of Delaware. The name of the registered agent of the corporation
at such location is The Corporation Trust Company.
SECTION 1.2 OTHER OFFICES. The board of directors may at any time
establish other offices at any place or places where the corporation is
qualified to do business.
ARTICLE II
DIRECTORS
SECTION 2.1 EXERCISE OF CORPORATE POWERS. Subject to the provisions of
the Delaware General Corporation Law and any limitations in the certificate of
incorporation or these bylaws relating to action required to be approved by the
stockholders or by the outstanding shares, the business and affairs of the
Company shall be managed and all corporate powers shall be exercised by or under
the ultimate direction of a board of directors (the "Board of Directors").
SECTION 2.2 NUMBER. The authorized number of directors of the
corporation shall be not less than five (5) nor more than nine (9). The exact
number of directors shall be eight (8) until changed, within the limits
specified above, by a bylaw amending this Section 2.2, duly adopted by the
unanimous consent of the Board of Directors. The indefinite number of directors
may be changed, or a definite number may be fixed without provision for an
indefinite number, by a duly adopted amendment to the certificate of
incorporation or by an amendment to this bylaw duly adopted by the vote or
written consent of holders of a majority of the outstanding shares entitled to
vote; provided, however, that an amendment reducing the fixed number or the
minimum number of directors to a number less than five (5) cannot be adopted if
the votes cast against its adoption at a meeting, or the shares not consenting
in the case of an action by written consent, are equal to more than sixteen and
two-thirds percent (16-2/3%) of the outstanding shares entitled to vote thereon.
No amendment may change the stated
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maximum number of authorized directors to a number greater than two (2) times
the stated minimum number of directors minus one (1).
SECTION 2.3 NEED NOT BE STOCKHOLDERS. The directors of the Company need
not be stockholders of the Company.
SECTION 2.4 COMPENSATION. Directors and members of committees may
receive such compensation, if any, for their services as may be fixed or
determined by resolution of the Board of Directors. Nothing herein contained
shall be construed to preclude any director from serving the Company in any
other capacity and receiving compensation therefor.
SECTION 2.5 ELECTION AND TERM OF OFFICE. The directors shall be elected
annually by the stockholders at the annual meeting of the stockholders. The term
of office of the directors shall begin immediately after their election and
shall continue until the next annual meeting of the stockholders and until their
respective successors are elected. A reduction of the authorized number of
directors shall not shorten the term of any incumbent director or remove any
incumbent director prior to the expiration of such director's term of office.
SECTION 2.6 VACANCIES. A vacancy or vacancies on the Board of Directors
shall exist:
(a) in the case of the death of any director; or
(b) in the case of the resignation or removal of any director; or
(c) if the authorized number of directors is increased; or
(d) if the stockholders fail, at any annual meeting of
stockholders at which any director is elected, to elect the full authorized
number of directors at that meeting.
The Board of Directors may declare vacant the office of a director if
he or she is declared of unsound mind by an order of court or convicted of a
felony or if, within 60 days after notice of his or her election, he or she does
not accept the office. Any vacancy, except for a vacancy created by removal of a
director as provided in Section 2.7 hereof, may be filled by a person selected
by a majority of the remaining directors then in office, whether or not less
than a quorum, or by a sole remaining director. Vacancies occurring in the Board
of Directors by reason of removal of directors shall be filled only by approval
of stockholders. The stockholders may elect a director at any time to fill any
vacancy not filled by the directors. Any such election by the written consent of
stockholders, other than to fill a vacancy created by removal, requires the
consent of stockholders holding a majority of the outstanding shares entitled to
vote. If, after the filling of any vacancy by the directors, the directors then
in office who have been elected
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by the stockholders shall constitute less than a majority of the directors then
in office, any holder or holders of an aggregate of 5% or more of the total
number of shares at that time having the right to vote for such directors may
call a special meeting of stockholders to be held to elect the entire Board of
Directors. The term of office of any director then in office shall terminate
upon the election of such director's successor. Any director may resign
effective upon giving written notice to the Chairman of the Board, if any, the
President, the Secretary or the Board of Directors, unless the notice specifies
a later time for the effectiveness of such resignation. After the notice is
given and if the resignation is effective at a future time, a successor may be
elected or appointed to take office when the resignation becomes effective.
SECTION 2.7 REMOVAL. The entire Board of Directors or any individual
director may be removed from office without cause by an affirmative vote of
stockholders holding a majority of the outstanding shares entitled to vote. If
the entire Board of Directors is not removed, however, then no individual
director shall be removed if the votes cast against removal of that director,
plus the votes not consenting in writing to such removal, would be sufficient to
elect that director if voted cumulatively in an election at which the following
were true:
(a) the same total number of votes were cast, or, if such action
is taken by written consent, all shares entitled to vote were voted; and
(b) the entire number of directors authorized at the time of the
director's most recent election were then being elected.
If any or all directors are so removed, new directors may be elected at
the same meeting or at a subsequent meeting. If at any time a class or series of
shares is entitled to elect one or more directors under authority granted by the
Certificate of Incorporation, the provisions of this Section 2.7 shall apply to
the vote of that class or series and not to the vote of the outstanding shares
as a whole.
SECTION 2.8 POWERS AND DUTIES. Without limiting the generality or
extent of the general corporate powers to be exercised by the Board of Directors
pursuant to Section 2.1 of these Bylaws, it is hereby provided that the Board of
Directors shall have full power with respect to the following matters:
(a) To purchase, lease and acquire any and all kinds of property,
real, personal or mixed, and at its discretion to pay therefor in money, in
property and/or in stocks, bonds, debentures or other securities of the Company.
(b) To enter into any and all contracts and agreements which in
its judgment may be beneficial to the interests and purposes of the Company.
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(c) To fix and determine and to vary from time to time the amount
or amounts to be set aside or retained as reserve funds or as working capital of
the Company or for maintenance, repairs, replacements or enlargements of its
properties.
(d) To declare and pay dividends in cash, shares and/or property
out of any funds of the Company at the time legally available for the
declaration and payment of dividends on its shares.
(e) To adopt such rules and regulations for the conduct of its
meetings and the management of the affairs of the Company as it may deem proper.
(f) To prescribe the manner in which and the person or persons by
whom any or all of the checks, drafts, notes, bills of exchange, contracts and
other corporate instruments shall be executed.
(g) To accept resignations of directors; to declare vacant the
office of a director as provided in Section 2.6 hereof; and, in case of vacancy
in the office of directors, to fill the same to the extent provided in Section
2.6 hereof.
(h) To create offices in addition to those for which provision is
made by law or these Bylaws; to elect and remove at pleasure all officers of the
Company, fix their terms of office, prescribe their titles, powers and duties,
limit their authority and fix their salaries in any way it may deem advisable
that is not contrary to law or these Bylaws.
(i) To designate one or more persons to perform the duties and
exercise the powers of any officer of the Company during the temporary absence
or disability of such officer.
(j) To appoint or employ and to remove at pleasure such agents and
employees as it may see fit, to prescribe their titles, powers and duties, limit
their authority and fix their salaries in any way it may deem advisable that is
not contrary to law or these Bylaws.
(k) To fix a time in the future, which shall not be more than 60
days nor less than 10 days prior to the date of the meeting nor more than 60
days prior to any other action for which it is fixed, as a record date for the
determination of the stockholders entitled to notice of and to vote at any
meeting, or entitled to receive any payment of any dividend or other
distribution, or allotment of any rights, or entitled to exercise any rights in
respect of any other lawful action; and in such case only stockholders of record
on the date so fixed shall be entitled to notice of and to vote at the meeting
or to receive the dividend, distribution or allotment of rights or to exercise
the rights, as the case may be, notwithstanding any transfer of any shares on
the books of the Company after any record date fixed as aforesaid. The Board of
Directors may close the books of the Company against transfers of shares during
the whole or any part of such period.
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(l) To fix and locate from time to time the principal office for
the transaction of the business of the Company and one or more branch or other
subordinate offices of the Company within or without the State of Delaware; to
designate any place within or without the State of Delaware for the holding of
any meeting or meetings of the stockholders or the Board of Directors, as
provided in Sections 3.1 and 7.1 hereof, to adopt, make and use a corporate
seal, and to prescribe the forms of certificates for shares and to alter the
form of such seal and of such certificates from time to time as in its judgment
it may deem best, provided such seal and such certificates shall at all times
comply with the provisions of law now or hereafter in effect.
(m) To authorize the issuance of shares of stock of the Company in
accordance with the laws of the State of Delaware and the Certificate of
Incorporation.
(n) Subject to the limitation provided in Section 10.2 hereof, to
adopt, amend or repeal from time to time and at any time these Bylaws and any
and all amendments thereof.
(o) To borrow money, make guarantees of indebtedness or other
obligations of third parties and incur indebtedness on behalf of the Company,
including the power and authority to borrow money from any of the stockholders,
directors or officers of the Company; and to cause to be executed and delivered
therefor in the corporate name promissory notes, bonds, debentures, deeds of
trust, mortgages, pledges (or other transfers of property as security or
collateral for a debt), or other evidences of debt and securities therefor; and
the note or other obligation given for any indebtedness of the Company, signed
officially by any officer or officers thereunto duly authorized by the Board of
Directors, shall be binding on the Company.
(p) To approve a loan of money or property to any officer or
director of the Company or any parent or subsidiary company, guarantee the
obligation of any such officer or director, or approve an employee benefit plan
authorizing such a loan or guaranty to any such officer or director; provided
that, on the date of approval of such loan or guaranty, the Company has
outstanding shares held of record by 100 or more persons. Such approval shall
require a determination by the Board of Directors that the loan or guaranty may
reasonably be expected to benefit the Company and must be by vote sufficient
without counting the vote of any interested director.
(q) Generally to do and perform every act and thing whatsoever
that may pertain to the office of a director or to a Board of Directors.
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ARTICLE III
MEETINGS OF DIRECTORS
SECTION 3.1 PLACE OF MEETINGS. Meetings (whether regular, special or
adjourned) of the Board of Directors of the Company shall be held at the
principal executive office of the Company or at any other place within or
outside the State of Delaware which may be designated from time to time by
resolution of the Board of Directors or which is designated in the notice of the
meeting.
SECTION 3.2 REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held after the adjournment of each annual meeting of the
stockholders (which regular directors' meeting shall be designated the "REGULAR
ANNUAL MEETING") and at such other times as may be designated from time to time
by resolution of the Board of Directors. Notice of the time and place of all
regular meetings shall be given in the same manner as for special meetings,
except that no such notice need be given if (a) the time and place of such
meetings are fixed by the Board of Directors or (b) the Regular Annual Meeting
is held at the principal executive office of this Corporation and on the date
specified by the Board of Directors.
SECTION 3.3 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board, if any, or the
President, or any Vice President, or the Secretary or by any two or more
directors.
SECTION 3.4 NOTICE OF SPECIAL MEETINGS. Special meetings of the Board
of Directors shall be held upon no less than 4 days' notice by mail or 48 hours'
notice delivered personally or by telephone or telegraph to each director.
Notice need not be given to any director who signs a waiver of notice or a
consent to holding the meeting or an approval of the minutes thereof, whether
before or after the meeting, or who attends the meeting without protesting,
prior thereto or at its commencement, the lack of notice to such director. All
such waivers, consents and approvals shall be filed with the corporate records
or made a part of the minutes of the meeting. Any oral notice given personally
or by telephone may be communicated either to the director or to a person at the
home or office of the director who the person giving the notice has reason to
believe will promptly communicate it to the director. A notice or waiver of
notice need not specify the purpose of any meeting of the Board of Directors. If
the address of a director is not shown on the records of the Company and is not
readily ascertainable, notice shall be addressed to him or her at the city or
place in which meetings of the directors are regularly held. If a meeting is
adjourned for more than 24 hours, notice of any adjournment to another time or
place shall be given prior to the time of the adjourned meeting to all directors
not present at the time of adjournment.
SECTION 3.5 QUORUM. A majority of the authorized number of directors
constitutes a quorum of the Board of Directors for the transaction of business.
Every act
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or decision done or made by a majority of the directors present at a meeting
duly held at which a quorum is present is the act of the Board of Directors
subject to provisions of law relating to interested directors and
indemnification of agents of the Company. A majority of the directors present,
whether or not a quorum is present, may adjourn any meeting to another time and
place. A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for such meeting.
SECTION 3.6 CONFERENCE TELEPHONE. Members of the Board of Directors may
participate in a meeting through use of conference telephone or similar
communications equipment, so long as all directors participating in such meeting
can hear one another. Participation in a meeting pursuant to this Section
constitutes presence in person at such meeting.
SECTION 3.7 WAIVER OF NOTICE AND CONSENT. The transactions of any
meeting of the Board of Directors, however called and noticed or wherever held,
shall be as valid as though had at a meeting duly held after regular call and
notice if a quorum is present, and if, either before or after the meeting, each
of the directors not present signs a written waiver of notice, a consent to
holding such meeting or an approval of the minutes thereof. All such waivers,
consents and approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
SECTION 3.8 ACTION WITHOUT A MEETING. Any action required or permitted
by law to be taken by the Board of Directors may be taken without a meeting, if
all members of the Board of Directors shall individually or collectively consent
in writing to the taking of such action. Such written consent or consents shall
be filed with the minutes of the proceedings of the Board of Directors. Such
action by written consent shall have the same force and effect as a unanimous
vote of such directors at a duly held meeting.
SECTION 3.9 COMMITTEES. The provisions of this Article apply also to
committees of the Board of Directors and action by such committees.
ARTICLE IV
COMMITTEES
SECTION 4.1 APPOINTMENT AND PROCEDURE. The Board of Directors may, by
resolution adopted by a majority of the authorized number of directors, appoint
from among its members one or more committees, including without limitation an
executive committee, an audit committee and a compensation committee, of two or
more directors. Each committee may make its own rules of procedure subject to
Section 3.9 hereof, and shall meet as provided by such rules or by a resolution
adopted by the Board of Directors (which resolution shall take precedence). A
majority of the members of the committee
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shall constitute a quorum, and in every case the affirmative vote of a majority
of all members of the committee shall be necessary to the adoption of any
resolution.
SECTION 4.2 EXECUTIVE COMMITTEE POWERS. During the intervals between
the meetings of the Board of Directors, the Executive Committee, if any, in all
cases in which specific directions shall not have been given by the Board of
Directors, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Company in
such manner as the Executive Committee may deem best for the interests of the
Company.
SECTION 4.3 POWERS OF OTHER COMMITTEES. Other committees shall have
such powers as are given them in a resolution of the Board of Directors.
SECTION 4.4 LIMITATIONS ON POWERS OF COMMITTEES. No committee shall
have the power to act with respect to:
(a) any action for which the laws of the State of Delaware also
require stockholder approval or approval of the outstanding shares;
(b) the filling of vacancies on the Board of Directors or in any
committee;
(c) the fixing of compensation of the directors for serving on the
Board of Directors or on any committee;
(d) the amendment or repeal of these Bylaws or the adoption of new
Bylaws;
(e) the amendment or repeal of any resolution of the Board of
Directors which by its express terms is not amendable or repealable;
(f) a distribution to the stockholders of the Company, except at a
rate or in a periodic amount or within a price range as set forth in the
Certificate of Incorporation or determined by the Board of Directors; and
(g) the appointment of other committees of the Board of Directors
or the members thereof.
ARTICLE V
OFFICERS
SECTION 5.1 ELECTION AND QUALIFICATION. The officers of the Company
shall consist of a President and/or a Chief Executive Officer, a Secretary, a
Chief Financial Officer and such other officers, including, but not limited to,
a Chairman of the Board of
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Directors, one or more Vice Presidents, a Treasurer, and Assistant Vice
Presidents, Assistant Secretaries and Assistant Treasurers, as the Board of
Directors shall deem expedient, who shall be chosen in such manner and hold
their offices for such terms as the Board of Directors may prescribe. Any number
of offices may be held by the same person.
SECTION 5.2 TERM OF OFFICE AND COMPENSATION. The term of office and
salary of each of said officers and the manner and time of the payment of such
salaries shall be fixed and determined by the Board of Directors and may be
altered by said Board of Directors from time to time at its pleasure, subject to
the rights, if any, of any officer under any contract of employment. Any officer
may resign at any time upon written notice to the Company, without prejudice to
the rights, if any, of the Company under any contract to which the officer is a
party. If any vacancy occurs in any office of the Company, the Board of
Directors may appoint a successor to fill such vacancy.
SECTION 5.3 CHIEF EXECUTIVE OFFICER. Subject to the control of the
Board of Directors and such supervisory powers, if any, as may be given by the
Board of Directors, the powers and duties of the Chief Executive Officer of the
Company are:
(a) To act as the general manager and, subject to the control of
the Board of Directors, to have general supervision, direction and control of
the business and affairs of the Company.
(b) To preside at all meetings of the stockholders and, in the
absence of the Chairman of the Board of Directors or if there be no Chairman, at
all meetings of the Board of Directors.
(c) To call meetings of the stockholders and meetings of the Board
of Directors to be held at such times and, subject to the limitations prescribed
by law or by these Bylaws, at such places as he or she shall deem proper.
(d) To affix the signature of the Company to all deeds,
conveyances, mortgages, leases, obligations, bonds, certificates and other
papers and instruments in writing which have been authorized by the Board of
Directors or which, in the judgment of the Chief Executive Officer, should be
executed on behalf of the Company; to sign certificates for shares of stock of
the Company; and, subject to the direction of the Board of Directors, to have
general charge of the property of the Company and to supervise and control all
officers, agents and employees of the Company.
The President shall be the Chief Executive Officer of the Company
unless the Board of Directors shall designate the Chairman of the Board or
another officer to be the Chief Executive Officer. If there is no President,
then the Chairman of the Board shall be the Chief Executive Officer.
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SECTION 5.4 CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors, if there be one, shall have the power to preside at all meetings of
the Board of Directors and shall have such other powers and shall be subject to
such other duties as the Board of Directors may from time to time prescribe.
SECTION 5.5 PRESIDENT. Subject to the supervisory powers of the Chief
Executive Officer, if not the President, and to such supervisory powers as may
be given by the Board of Directors to the Chairman of the Board, if one is
elected, or to any other officer, the President shall have the general powers
and duties of management usually vested in the office of president of a
corporation and shall have such other powers and duties as may be prescribed by
the Board of Directors or these Bylaws.
SECTION 5.6 PRESIDENT PRO TEM. If neither the Chairman of the Board of
Directors, the President, nor any Vice President is present at any meeting of
the Board of Directors, a President pro tem may be chosen by the directors
present at the meeting to preside and act at such meeting. If neither the
President nor any Vice President is present at any meeting of the stockholders,
a President pro tem may be chosen by the stockholders present at the meeting to
preside at such meeting.
SECTION 5.7 VICE PRESIDENT. The titles, powers and duties of the Vice
President or Vice Presidents, if any, shall be as prescribed by the Board of
Directors. In case of the resignation, disability or death of the President, the
Vice President, or one of the Vice Presidents, shall exercise all powers and
duties of the President. If there is more than one Vice President, the order in
which the Vice Presidents shall succeed to the powers and duties of the
President shall be as fixed by the Board of Directors.
SECTION 5.8 SECRETARY. The powers and duties of the Secretary are:
(a) To keep a book of minutes at the principal executive office of
the Company, or such other place as the Board of Directors may order, of all
meetings of its directors and stockholders with the time and place of holding of
such meeting, whether regular or special, and, if special, how authorized, the
notice thereof given, the names of those present at directors' meetings, the
number of shares present or represented at stockholders' meetings and the
proceedings thereof.
(b) To keep the seal of the Company and to affix the same to all
instruments which may require it.
(c) To keep or cause to be kept at the principal executive office
of the Company, or at the office of the transfer agent or agents, a record of
the stockholders of the Company, giving the names and addresses of all
stockholders and the number and class of shares held by each, the number and
date of certificates issued for shares and the number and date of cancellation
of every certificate surrendered for cancellation.
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(d) To keep a supply of certificates for shares of the Company, to
fill in all certificates issued, and to make a proper record of each such
issuance; provided that, so long as the Company shall have one or more duly
appointed and acting transfer agents of the shares, or any class or series of
shares, of the Company, such duties with respect to such shares shall be
performed by such transfer agent or transfer agents.
(e) To transfer upon the share books of the Company any and all
shares of the Company; provided that, so long as the Company shall have one or
more duly appointed and acting transfer agents of the shares, or any class or
series of shares, of the Company, such duties with respect to such shares shall
be performed by such transfer agent or transfer agents, and the method of
transfer of each certificate shall be subject to the reasonable regulations of
the transfer agent to whom the certificate is presented for transfer and, if the
Company then has one or more duly appointed and acting registrars, subject to
the reasonable regulations of the registrar to which a new certificate is
presented for registration; and, provided further, that no certificate for
shares of stock shall be issued or delivered or, if issued or delivered, shall
have any validity whatsoever until and unless it has been signed or
authenticated in the manner provided in Section 8.2 hereof.
(f) To make service and publication of all notices that may be
necessary or proper in connection with meetings of the Board of Directors of the
stockholders of the Company. In case of the absence, disability, refusal or
neglect of the Secretary to make service or publication of any notices, then
such notices may be served and/or published by the President or a Vice
President, or by any person thereunto authorized by either of them, or by the
Board of Directors, or by the holders of a majority of the outstanding shares of
the Company.
(g) Generally to do and perform all such duties as pertain to such
office and as may be required by the Board of Directors.
SECTION 5.9 CHIEF FINANCIAL OFFICER. The powers and duties of the Chief
Financial Officer are:
(a) To supervise and control the keeping and maintaining of
adequate and correct accounts of the Company's properties and business
transactions, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, surplus and shares. The books of account
shall at all reasonable times be open to inspection by any director.
(b) To have the custody of all funds, securities, evidences of
indebtedness and other valuable documents of the Company and, at his or her
discretion, to cause any or all thereof to be deposited for the account of the
Company with such depository as may be designated from time to time by the Board
of Directors.
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(c) To receive or cause to be received, and to give or cause to be
given, receipts and acquittances for monies paid in for the account of the
Company.
(d) To disburse, or cause to be disbursed, all funds of the
Company as may be directed by the President or the Board of Directors, taking
proper vouchers for such disbursements.
(e) To render to the President or to the Board of Directors,
whenever either may require, accounts of all transactions as Chief Financial
Officer and of the financial condition of the Company.
(f) Generally to do and perform all such duties as pertain to such
office and as may be required by the Board of Directors.
SECTION 5.10 INSTRUMENTS IN WRITING. All checks, drafts, demands for
money, notes and written contracts of the Company shall be signed by such
officer or officers, agent or agents, as the Board of Directors may from time to
time designate. No officer, agent, or employee of the Company shall have the
power to bind the Company by contract or otherwise unless authorized to do so by
these Bylaws or by the Board of Directors.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 THIRD PARTY ACTIONS. The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a
director, 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 (if such settlement is approved in advance by the corporation,
which approval shall not be unreasonably withheld) actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO
CONTENDERE or its equivalent, shall not of itself, create a presumption that the
person did not act in good faith and in a manner which the person reasonably
believed to be in or not opposed to the best interest of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that the person's conduct was unlawful.
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SECTION 6.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The
corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director, officer, employee or agent of
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)
and amounts paid in settlement (if such settlement is approved in advance by the
corporation, which approval shall not be unreasonably withheld) 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 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 Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper. Notwithstanding any other provision of this
Article VI, no person shall be indemnified hereunder for any expenses or amounts
paid in settlement with respect to any action to recover shortswing profits
under Section 16(b) of the Securities Exchange Act of 1934, as amended.
SECTION 6.3 SUCCESSFUL DEFENSE. 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 in Sections
6.1 and 6.2, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
SECTION 6.4 DETERMINATION OF CONDUCT. Any indemnification under
Sections 6.1 and 6.2 (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
the 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 in Sections 6.1 and 6.2. Such determination shall be made (1) by the Board
of Directors or the Executive Committee by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding
or (2) or if such quorum is not obtainable or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders. Notwithstanding the foregoing, a director,
officer, employee or agent of the Corporation shall be entitled to contest any
determination that the director, officer, employee or agent has not met the
applicable standard of conduct set forth in Sections 6.1 and 6.2 by petitioning
a court of competent jurisdiction.
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SECTION 6.5 PAYMENT OF EXPENSE IN ADVANCE. Expenses incurred in
defending a civil or criminal action, suit or proceeding, by an individual who
may be entitled to indemnification pursuant to Section 6.1 or 6.2, 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 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 in this Article VI.
SECTION 6.6 INDEMNITY NOT EXCLUSIVE. The indemnification and
advancement of expenses provided by or granted pursuant to the other sections of
this Article VI shall not be deemed exclusive of any other fights to which those
seeking indemnification or advancement of expenses may be entitled under any
by-law, 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.
SECTION 6.7 INSURANCE INDEMNIFICATION. The corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against such person and incurred by such person
in any such capacity or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person against such
liability under the provisions of this Article VI.
SECTION 6.8 THE CORPORATION. For purposes of this Article VI,
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and 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 and subject to
the provisions of this Article VI (including, without limitation the provisions
of Section 6.4) with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
SECTION 6.9 EMPLOYEE BENEFIT PLANS. For purposes of this Article VI,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the corporation" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good
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faith and in a manner such person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the corporation"
as referred to in this Article VI.
SECTION 6.10 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VI shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ARTICLE VII
MEETINGS OF, AND REPORTS TO, STOCKHOLDERS
SECTION 7.1 PLACE OF MEETINGS. Meetings of stockholders shall be held
at any place, either within or without the State of Delaware, as may be
designated by the Board of Directors or in the manner provided in these bylaws.
In the absence of any such designation, stockholders' meetings shall be held at
the registered office of the corporation in the State of Delaware.
SECTION 7.2 ANNUAL MEETING. The annual meeting of stockholders shall be
held each year on a date and at a time designated by the Board of Directors. In
the absence of such designation, the annual meeting of stockholders shall be
held on the second Tuesday of May of each year at 10:00 a.m. However, if such
day falls on a legal holiday, then the meeting shall be held at the same time
and place on the next succeeding business day. At the meeting, directors shall
be elected and any other proper business may be transacted.
SECTION 7.3 SPECIAL MEETING. A special meeting of the stockholders may
be called at any time by the Board of Directors, or by the chairman of the
board, or by the president, or by one or more stockholders holding shares in the
aggregate entitled to cast not less than ten percent of the votes at that
meeting.
If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the chairman of the board, the president or the
secretary of the corporation. No business may be transacted at such special
meeting otherwise than specified in such notice. The officer receiving the
request shall cause notice to be promptly given to the stockholders entitled to
vote, in accordance with the provisions of Sections 7.4 and 7.5 of this Article
II, that a meeting will be held at the time requested by the person or persons
calling the meeting, not less than ten (10) nor more than sixty (60) days after
the receipt of the request. Nothing contained in this paragraph of this Section
7.3 shall be construed as limiting,
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fixing, or affecting the time when a meeting of stockholders called by action of
the Board of Directors may be held.
SECTION 7.4 NOTICE OF STOCKHOLDERS' MEETING . All notices of meetings
with stockholders shall be in writing and shall be sent or otherwise given in
accordance with Section 7.5 of these bylaws not less than ten (10) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to
vote at such meeting. The notice shall specify the place, date, and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called.
SECTION 7.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER
BUSINESS. Subject to the rights of holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation,
(a) nominations for the election of directors, and
(b) business proposed to be brought before any stockholder meeting
may be made by the Board of Directors or proxy committee appointed by the Board
of Directors or by any stockholder entitled to vote in the election of directors
generally if such nomination or business proposed is otherwise proper business
before such meeting. However, any such stockholder may nominate one or more
persons for election as directors at a meeting or propose business to be brought
before a meeting, or both, only if such stockholder has given timely notice in
proper written form of their intent to make such nomination or nominations or to
propose such business. To be timely, such stockholder's notice must be delivered
to or mailed and received at the principal executive offices of the corporation
not less than one hundred twenty (120) calendar days in advance of the first
anniversary date of mailing of the corporation's proxy statement released to
stockholders in connection with the previous year's annual meeting of
stockholders; provided, however, that in the event that no annual meeting was
held in the previous year or the date of the annual meeting has been changed by
more than thirty (30) days from the date contemplated at the time of the
previous year's proxy statement, notice by the stockholder to be timely must be
so received a reasonable time before the solicitation is made. To be in proper
form, a stockholder's notice to the secretary shall set forth:
(i) the name and address of the stockholder who intends
to make the nominations or propose the business and, as the case may be, of the
person or persons to be nominated or of the business to be proposed;
(ii) a representation that the stockholder is a holder of
record of stock of the corporation entitled to vote at such meeting and, if
applicable, intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice;
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(iii) if applicable, a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder;
(iv) such other information regarding each nominee or each
matter of business to be proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or intended
to be nominated, or the matter been proposed, or intended to be proposed by the
Board of Directors; and
(v) if applicable, the consent of each nominee to serve as
director of the corporation if so elected.
The chairman of the meeting shall refuse to acknowledge the nomination
of any person or the proposal of any business not made in compliance with the
foregoing procedure.
SECTION 7.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Written
notice of any meeting of stockholders, if mailed, is given when deposited in the
United States mail, postage prepaid, directed to the stockholder at his address
as it appears on the records of the corporation. An affidavit of the secretary
or an assistant secretary or of the transfer agent of the corporation that the
notice has been given shall, in the absence of fraud, be prima facie evidence of
the facts stated therein.
SECTION 7.7 QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either (i) the Chairman of
the meeting or (ii) the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present or represented. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted that might have been transacted
at the meeting as originally noticed.
SECTION 7.8 ADJOURNED MEETING; NOTICE. When a meeting is adjourned to
another time or place, unless these bylaws otherwise require, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business that might have been transacted at the
original meeting. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the
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adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION 7.9 CONDUCT OF BUSINESS. The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
business.
SECTION 7.10 VOTING. The stockholders entitled to vote at any meeting
of stockholders shall be determined in accordance with the provisions of Section
7.12 of these bylaws, subject to the provisions of Sections 217 and 218 of the
Delaware General Corporation Law (relating to voting rights of fiduciaries,
pledgors and joint owners of stock and to voting trusts and other voting
agreements).
Except as provided in the last paragraph of this Section 7.10, or as
may be otherwise provided in the certificate of incorporation, each stockholder
shall be entitled to one vote for each share of capital stock held by such
stockholder.
At a stockholders' meeting at which directors are to be elected, each
stockholder shall be entitled to cumulate votes (i.e., cast for any candidate a
number of votes greater than the number of votes which such stockholder normally
is entitled to cast) if the candidates' names have been properly placed in
nomination (in accordance with these bylaws) prior to commencement of the voting
and the stockholder requesting cumulative voting or any other stockholder voting
at the meeting in person or by proxy has given notice prior to commencement of
the voting of the stockholder's intention to cumulate votes. If cumulative
voting is properly requested, each holder of stock, or of any class or classes
or of a series or series thereof, who elects to cumulate votes shall be entitled
to as many votes as equals the number of votes which (absent this provision as
to cumulative voting) such person would be entitled to cast for the election of
directors with respect to his shares of stock multiplied by the number of
directors to be elected by such person, and that such person may cast all of
such votes for a single director or may distribute them among the number to be
voted for, or for any two or more of them, as such person may see fit.
SECTION 7.11 WAIVER OF NOTICE. Whenever notice is required to be given
under any provision of the Delaware General Corporation Law or of the
certificate of incorporation or these bylaws, a written waiver, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice unless
so required by the certificate of incorporation or these bylaws.
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SECTION 7.12 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Unless otherwise provided in the certificate of incorporation, any action
required to be taken at any annual or special meeting of stockholders of a
corporation, or any action that may be taken at any annual or special meeting of
such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted.
(a) Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. If the action which is consented
to is such as would have required the filing of a certificate under any section
of the Delaware General Corporation Law if such action had been voted on by
stockholders at a meeting thereof, then the certificate filed under such section
shall state, in lieu of any statement required by such section concerning any
vote of stockholders, that written notice and written consent have been given as
provided in Section 228 of the Delaware General Corporation Law.
SECTION 7.13 RECORD DATE FOR STOCKHOLDER NOTICE, VOTING, GIVING
CONSENTS. In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If the Board of Directors does not so fix a record date:
(a) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held.
(b) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the first date on which
a signed written consent is delivered to the corporation.
(c) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
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A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 7.14 PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by a written proxy, signed by such stockholder and filed with the
secretary of the corporation, but no such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer
period. A proxy shall be deemed signed if such stockholder's name is placed on
the proxy by any reasonable means including, but not limited to, by facsimile
signature, manual signature, typewriting, telegraphic transmission or otherwise,
by such stockholder or such stockholder's attorney-in-fact. The revocability of
a proxy that states on its face that it is irrevocable shall be governed by the
provisions of Section 212(e) of the Delaware General Corporation Law.
SECTION 7.15 LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer who has
charge of the stock ledger of a corporation shall prepare and make, at least ten
(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 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, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. Such list shall presumptively
determine the identity of the stockholders entitled to vote at the meeting and
the number of shares held by each of them.
SECTION 7.16 MAINTENANCE AND INSPECTION OF RECORDS. The corporation
shall, either at its principal executive officer or at such place or places as
designated by the Board of Directors, keep a record of its stockholders listing
their names and addresses and the number and class of shares held by each
stockholder, a copy of these bylaws as amended to date, accounting books, and
other records.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a
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power of attorney or such other writing that authorizes the attorney or other
agent so to act on behalf of the stockholder. The demand under oath shall be
directed to the corporation at its registered office in Delaware or at its
principal place of business.
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, 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,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
SECTION 7.17 INSPECTION BY DIRECTORS. Any director shall have the right
to examine the corporation's stock ledger, a list of its stockholders, and its
other books and records for a purpose reasonably related to his position as a
director. The Court of Chancery is hereby vested with the exclusive jurisdiction
to determine whether a director is entitled to the inspection sought. The Court
may summarily order the corporation to permit the director to inspect any and
all books and records, the stock ledger, and the stock list and to make copies
or extracts therefrom. The Court may, in its discretion, prescribe any
limitations or conditions with reference to the inspection, or award such other
and further relief as the Court may deem just and proper.
SECTION 7.18 ANNUAL STATEMENT TO STOCKHOLDERS. The Board of Directors
shall present at each annual meeting, and at any special meeting of the
stockholders when called for by vote of the stockholders, a full and clear
statement of the business and condition of the corporation.
ARTICLE VIII
SHARES AND SHARE CERTIFICATES
SECTION 8.1 SHARES HELD BY THE COMPANY. Shares in other companies
standing in the name of the Company may be voted or represented and all rights
incident thereto may be exercised on behalf of the Company by any officer of the
Company authorized to do so by resolution of the Board of Directors.
SECTION 8.2 CERTIFICATES FOR SHARES. There shall be issued to every
holder of shares in the Company a certificate or certificates signed in the name
of the Company by the Chairman of the Board, if any, or the President or a Vice
President and by the Chief Financial Officer or an Assistant Chief Financial
Officer or the Secretary or any Assistant
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Secretary, certifying the number of shares and the class or series of shares
owned by the stockholder. Any or all of the signatures on the certificate may be
facsimile. In case 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, it may be issued by the Company with the same effect as if such person
were an officer, transfer agent or registrar at the date of issue.
SECTION 8.3 LOST CERTIFICATES. Where the owner of any certificate for
shares of the Company claims that the certificate has been lost, stolen or
destroyed, a new certificate shall be issued in place of the original
certificate if the owner (a) so requests before the Company has notice that the
original certificate has been acquired by a bona fide purchaser and (b)
satisfies any reasonable requirements imposed by the Company, including without
limitation the filing with the Company of an indemnity bond or agreement in such
form and in such amount as shall be required by the President or a Vice
President of the Company. The Board of Directors may adopt such other provisions
and restrictions with reference to lost certificates, not inconsistent with
applicable law, as it shall in its discretion deem appropriate.
SECTION 8.4 RESTRICTIONS ON TRANSFER OF SHARES.
(a) Before any stockholder of the Company may sell, assign, gift,
pledge or otherwise transfer any shares of the Company's capital stock, such
stockholder shall first notify the Company in writing of such transfer and such
transfer may not be effected unless and until legal counsel for the Company or
legal counsel of such stockholder has concluded that such transfer, when
effected as proposed by such stockholder (i) will comply with all applicable
provisions of any applicable state and federal securities laws, including but
not limited to the Securities Act of 1933, as amended, and the General
Corporation Law of Delaware, as amended (ii) will not jeopardize, terminate or
adversely affect the Company's status as an S Corporation, if applicable, as
that term is defined in the Internal Revenue Code of 1986, as amended. The
Company may require that certificates representing shares of stock of the
Company be endorsed with a legend describing the restrictions set forth in this
Section.
(b) If (i) any two or more stockholders of the Company shall enter
into any agreement abridging, limiting or restricting the rights of any one or
more of them to sell, assign, transfer, mortgage, pledge, hypothecate or
transfer on the books of the Company any or all of the shares of the Company
held by them, and if a copy of said agreement shall be filed with the Company,
or if (ii) stockholders entitled to vote shall adopt any Bylaw provision
abridging, limiting or restricting the rights of any stockholders mentioned
above, then, and in either of such events, all certificates of shares of stock
subject to such abridgments, limitations or restrictions shall have a reference
thereto endorsed thereon by an officer of the Company and such certificates
shall not thereafter be transferred on the books of the Company except in
accordance with the terms and provisions of such as the case may be; however, no
restriction shall be binding
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with respect to shares issued prior to adoption of the restriction unless the
holders of such shares voted in favor of, or consented in writing to, the
restriction.
ARTICLE IX
CONSTRUCTION OF BYLAWS WITH
REFERENCE TO PROVISIONS OF LAW
SECTION 9.1 BYLAW PROVISIONS CONSTRUED AS ADDITIONAL AND SUPPLEMENTAL
TO PROVISIONS OF LAW. All restrictions, limitations, requirements and other
provisions of these Bylaws shall be construed, insofar as possible, as
supplemental and additional to all provisions of law applicable to the subject
matter thereof and shall be fully complied with in addition to the said
provisions of law unless such compliance shall be illegal.
SECTION 9.2 BYLAWS PROVISIONS CONTRARY TO OR INCONSISTENT WITH
PROVISIONS OF LAW. Any article, section, subsection, subdivision, sentence,
clause or phrase of these Bylaws which, upon being construed in the manner
provided in Section 9.1 hereof, shall be contrary to or inconsistent with any
applicable provision of law, shall not apply so long as said provisions of law
shall remain in effect, but such result shall not affect the validity or
applicability of any other portion of these Bylaws, it being hereby declared
that these Bylaws, and each article, section, subsection, subdivision, sentence,
clause or phrase thereof, would have been adopted irrespective of the fact that
any one or more articles, sections, subsections, subdivisions, sentences,
clauses or phrases is or are illegal.
ARTICLE X
CERTIFICATION, ADOPTION, AMENDMENT
OR REPEAL OF BYLAWS
SECTION 10.1 BY STOCKHOLDERS. Bylaws may be adopted, amended or
repealed by the vote or written consent of holders of a majority of the
outstanding shares entitled to vote. Bylaws specifying or changing a fixed
number of directors or the maximum or minimum number or changing from a fixed to
a variable board or vice versa may be adopted only by the stockholders.
SECTION 10.2 BY THE BOARD OF DIRECTORS. Subject to the right of
stockholders to adopt, amend or repeal Bylaws, and other than a Bylaw or
amendment thereof specifying or changing a fixed number of directors or the
maximum or minimum number or changing from a fixed to a variable board or vice
versa, these Bylaws may be adopted, amended or repealed by the Board of
Directors. A Bylaw adopted by the stockholders may restrict or eliminate the
power of the Board of Directors to adopt, amend or repeal Bylaws.
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SECTION 10.3 CERTIFICATION AND INSPECTION OF BYLAWS. The Company shall
keep at its principal executive office the original or a copy of these Bylaws as
amended or otherwise altered to date, which shall be open to inspection by the
stockholders at all reasonable times during office hours.
ARTICLE XI
RESTRICTIONS ON TRANSFERS TO COMPETITORS
SECTION 11.1 TRANSFERS TO COMPETITORS. Before any stockholder may sell
or otherwise transfer (including without limitation a transfer by gift or
operation of law) any Shares to any person or entity engaged or planning to
engage in activities competitive, either directly or indirectly, with the then
current and proposed products and services of the Company (including actual or
anticipated research or development), or any affiliate of such person or entity,
as determined in good faith by the Board of Directors, such stockholder must
obtain the prior written consent of the Board of Directors, which consent may
not be unreasonably withheld.
SECTION 11.2 TRANSFERS TO PERSONS OR ENTITIES IN THE PHARMACEUTICAL OR
BIOTECHNOLOGY INDUSTRY. Before any stockholder may sell or otherwise transfer
(including without limitation a transfer by gift or operational of law) any
Shares to any person or entity engaged or planning to engage in activities in
the pharmaceutical or biotechnology industry, or any affiliate of such person or
entity, as determined in good faith by the Board of Directors, such stockholder
must obtain the prior written consent of the Board of Directors, which consent
may not be unreasonably withheld.
SECTION 11.3 TERMINATION OF RESTRICTIONS. The restrictions on transfers
of Shares set forth in this Article XI and in Section 8.4(a) will terminate as
to all Shares on the effective date of the first sale of common stock of the
Company to the general public pursuant to a registration statement filed with
and declared effective by the Securities and Exchange Commission under the
Securities Act of 1933, as amended (other than a registration statement relating
solely to the issuance of common stock pursuant to a business combination or an
employee incentive or benefit plan).
ARTICLE XII
RIGHT OF FIRST REFUSAL
SECTION 12.1 RIGHT OF FIRST REFUSAL. Before any stockholder may sell or
otherwise transfer (including without limitation a transfer by gift or operation
of law) any shares of the Company's Common Stock (excluding those shares of
Common Stock issuable upon conversion of the Company's Series A1 Preferred Stock
held by entities affiliated with Kleiner Perkins Caufield & Byers,) Series B
Preferred Stock, Series C Preferred Stock, Series A Preferred Stock, and Series
Al Preferred Stock (excluding those shares held by
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entities affiliated with Kleiner Perkins Caufield & Byers), the Company and/or
its assignee(s) will have a right of first refusal to purchase all or a portion
of the shares to be sold or transferred (the "Offered Shares") on the terms and
conditions set forth in this Article (the "Right of First Refusal").
SECTION 12.2 NOTICE OF PROPOSED TRANSFER. Any stockholder who proposes
to sell or transfer such Offered Shares (a "HOLDER") will first deliver to the
Company a written notice (the "NOTICE") stating: (i) the Holder's bona fide
intention to sell or otherwise transfer the Offered Shares; (ii) the name of
each proposed purchaser or other transferee ("PROPOSED TRANSFEREE"); (iii) the
number of Offered Shares to be transferred to each Proposed Transferee; (iv) the
bona fide cash price or other consideration for which the Holder proposes to
transfer the Offered Shares (the "OFFERED PRICE"); and (v) that the Holder will
offer to sell the Offered Shares to the Company and/or its assignee(s) at the
Offered Price on a per Offered Share basis as provided in this Section.
SECTION 12.3 EXERCISE OF RIGHT OF FIRST REFUSAL. At any time within
thirty (30) days after the date of the Notice, the Company and/or its
assignee(s) may, by giving written notice to the Holder, elect to purchase all
or a portion of the Offered Shares proposed to be transferred to any one or more
of the Proposed Transferees named in the Notice, at the purchase-price
determined in accordance with Section 12.4 below.
SECTION 12.4 PURCHASE PRICE. The purchase price for the Offered Shares
purchased under this Section will be the Offered Price on a per Offered Share
basis. If the Offered Price includes consideration other than cash, then the
value of the non-cash consideration as determined in good faith by the Company's
Board of Directors will conclusively be deemed to be the cash equivalent value
of such non-cash consideration.
SECTION 12.5 PAYMENT. Payment of the purchase price for Offered Shares
will be payable, at the option of the Company and/or its assignee(s) (as
applicable), by check or by cancellation of all or a portion of any outstanding
indebtedness of the Holder to the Company (or to such assignee, in the case of a
purchase of Offered Shares by such assignee) or by any combination thereof. The
purchase price will be paid without interest within sixty (60) days after the
Company's receipt of the Notice, or, at the option of the Company and/or its
assignee(s), in the manner and at the time(s) set forth in the Notice.
SECTION 12.6 HOLDER'S RIGHT TO TRANSFER. If any of the Offered Shares
proposed in the Notice to be transferred to a given Proposed Transferee are not
purchased by the Company and/or its assignee(s) as provided in this Article,
then the Holder may sell or otherwise transfer such unpurchased Offered Shares
to that Proposed Transferee at the Offered Price per Offered Share or at a
higher price per Offered Share, PROVIDED that such sale or other transfer is
consummated within 120 days after the date of the Notice, and PROVIDED further
that: (i) any such sale or other transfer is effected in compliance with all
applicable securities laws; and (ii) the Proposed Transferee agrees in writing
that the provisions of this Section will continue to apply to the Offered Shares
in the hands of
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such Proposed Transferee. If the remaining Offered Shares described in the
Notice are not transferred to the Proposed Transferee within such 120 day
period, then a new Notice must be given to the Company, and the Company will
again be offered the Right of First Refusal before any shares of the Company's
capital stock held by the Holder may be sold or otherwise transferred.
SECTION 12.7 EXEMPT TRANSFERS. Notwithstanding anything to the contrary
in this Article, the following transfers of shares of the Company's capital
stock will be exempt from the Right of First Refusal: (i) the transfer of any or
all shares held by a stockholder during such stockholder's lifetime by gift or
on such stockholders death by will or intestacy to the stockholders "IMMEDIATE
FAMILY" (as defined below) or to a trust for the benefit of the stockholder or
the stockholder's immediate family; (ii) any transfer of shares made pursuant to
a statutory merger or statutory consolidation of the Company with or into
another corporation or corporations (except that the Right of First Refusal will
continue to apply thereafter to such shares, in which case the surviving
corporation of such merger or consolidation shall succeed to the rights of the
Company under this Article unless the agreement of merger or consolidation
expressly otherwise provides); or (iii) any transfer of shares pursuant to the
winding up and dissolution of the Company. As used herein, the term "immediate
family" will mean the stockholder's spouse, lineal descendant or antecedent,
father, mother, brother or sister, adopted child or grandchild, or the spouse of
any child, adopted child, grandchild or adopted grandchild of such stockholder.
SECTION 12.8 TERMINATION OF RIGHT OF FIRST REFUSAL. The Right of First
Refusal will terminate as to all shares of the Company's capital stock on the
effective date of the first sale of common stock of the Company to the general
public pursuant to a registration statement filed with and declared effective by
the SEC under the 1933 Act (other than a registration statement relating solely
to the issuance of common stock pursuant to a business combination or an
employee incentive or benefit plan).
ARTICLE XIII
GENERAL MATTERS
SECTION 13.1 CHECKS. From time to time, the Board of Directors shall
determine by resolution which person or persons may sign or endorse all checks,
drafts, other orders for payment of money, notes or other evidences of
indebtedness that are issued in the name of or payable to the corporation, and
only the persons so authorized shall sign or endorse those instruments.
SECTION 13.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS. From
time to time, the Board of Directors shall determine by resolution which person
or persons may sign or endorse all checks, drafts, other orders for payment of
money, notes or other
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evidences of indebtedness that are issued in the name of or payable to the
corporation, and only the persons so authorized shall sign or endorse those
instruments.
SECTION 13.3 DIVIDENDS. The directors of the corporation, subject to
any restrictions contained in (i) the Delaware General Corporation Law or (ii)
the certificate of incorporation, may declare and pay dividends upon the shares
of its capital stock. Dividends may be paid in cash, in property, or in shares
of the corporation's capital stock.
The directors of the corporation may set apart out of any of the funds
of the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve. Such purposes shall include but not be
limited to equalizing dividends, repairing or maintaining any property of the
corporation, and meeting contingencies.
SECTION 13.4 FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors and may be changed by the Board of
Directors.
SECTION 13.5 SEAL. The corporation may adopt a corporate seal, which
shall be adopted and which may be altered by the Board of Directors, and may use
the same by causing it or a facsimile thereof to be impressed or affixed or in
any other manner reproduced.
SECTION 13.6 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 in its books.
SECTION 13.7 STOCK TRANSFER AGREEMENTS. The corporation shall have
power to enter into and perform any agreement with any number of stockholders of
any one or more classes of stock of the corporation to restrict the transfer of
shares of stock of the corporation of any one or more classes owned by such
stockholders in any manner not prohibited by the Delaware General Corporation
Law.
SECTION 13.8 REGISTERED STOCKHOLDERS. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends and to vote as such owner, shall be
entitled to hold liable for calls and assessments the person registered on its
books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of another
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
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ARTICLE XIV
AMENDMENTS
The bylaws of the corporation may be adopted, amended or repealed by
the stockholders entitled to vote; provided, however, that the corporation may,
in its certificate of incorporation, confer the power to adopt, amend or repeal
bylaws upon the directors. The fact that such power has been so conferred upon
the directors shall not divest the stockholders of the power, nor limit their
power to adopt, amend or repeal bylaws.
The undersigned certify under penalty of perjury under the laws of the
State of Delaware that the matters set forth in this Certificate are true and
correct of our own knowledge.
Executed at Oakland, California, on July 6th, 2000.
/s/ John Couch
---------------------------------
John Couch, President
/s/ Gregory C. Thayer
---------------------------------
Gregory C. Thayer, Secretary
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