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EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS OF
COMBIMATRIX CORPORATION
(A DELAWARE CORPORATION)
ARTICLE 1 . OFFICES
1.1 The registered office in the state of Delaware is National Registered
Agents, Inc., in the City of Dover, County of Kent.
1.2 The corporation may also have offices at such other places both within and
without the State of Delaware as the Board of Directors may from time to time
determine or the business of the corporation may require.
ARTICLE 2 . MEETINGS OF STOCKHOLDERS
2.1 All meetings of the stockholders shall be held at such place, within or
without the State of Delaware, as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
2.2 The Secretary shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of 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.
ANNUAL MEETINGS
2.3 Annual meetings of stockholders shall be held at such date and time as shall
be designated from time to time by the Board of Directors and stated in the
notice of the meeting, at which the stockholders shall elect directors and
transact such other business as may properly be brought before the meeting. At
an annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting.
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SPECIAL MEETINGS
2.4 Special meetings of the stockholders may be called only by the Board of
Directors, the Chairman of the Board or the Chief Executive Officer and may not
be called by any other person or persons. Upon such written request to the
Secretary by any person or persons (other than the Board of Directors) entitled
to call a special meeting of the stockholders, the Secretary shall cause notice
to be given to the stockholders entitled to vote that a meeting will be held at
a time requested by the person or persons calling the meeting, not less than
thirty-five (35) days nor more than sixty (60) days after the receipt of the
request. If notice of a special meeting of the stockholders is not given within
twenty (20) days after the Secretary's receipt of the request, the person or
persons entitled to call the meeting may give the notice. Subject to the
provisions of applicable law, only such business shall be considered at a
special meeting of the stockholders as shall have been stated in the notice for
such meeting.
BUSINESS WHICH MAY BE CONDUCTED
2.5 Annual Meetings of the Stockholders.
2.5.1 Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the stockholders may be
made at an annual meeting of the stockholders only (A) pursuant to the
corporation's notice of meeting (or any supplement thereto), (B) by or
at the direction of the Board of Directors or (C) by any stockholder of
the corporation who was a stockholder of record of the corporation at
the time the notice provided for in this Section is delivered to the
Secretary, who is entitled to vote at the meeting and who complies with
the notice procedures set forth in this Section.
2.5.2 For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (C) of Section 2.5.1,
the stockholder must have given timely notice thereof in writing to the
Secretary and any such proposed business other than the nominations of
persons for election to the Board of Directors must constitute a proper
matter for stockholder action. To be timely, a stockholder's notice
shall be delivered to the Secretary at the principal executive offices
of the corporation not later than the close of business on the ninetieth
(90th) day nor earlier than the close of business on the 120th day 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 more than thirty (30) days before or more than seventy (70)
days after such anniversary date, notice by the stockholder must be so
delivered not earlier than the close of business on the 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). In no event
shall the public announcement of an adjournment or postponement of an
annual meeting commence a new time period (or extend any time period)
for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth: (A) as to each person whom the
stockholder proposes to nominate for 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 Regulation
14A under the Securities
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Exchange Act of 1934, as amended (the "EXCHANGE ACT") and Rule 14a-11
thereunder (and such person's written consent to being named in the
proxy statement as a nominee 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 the Amended
and Restated Bylaws of the corporation, 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; and (C)
as to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (1) the name and
address of such stockholder, as they appear on the corporation's books,
and of such beneficial owner, (2) the class and number of shares of
capital stock of the corporation which are owned beneficially and of
record by such stockholder and such beneficial owner, (3) a
representation that the stockholder is a holder of record of stock of
the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at such meeting to propose such business or
nomination, and (4) a representation whether the stockholder or
beneficial owner, if any, intends or is part of a group which intends
(x) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the corporation's outstanding capital stock
required to approve or adopt the proposal or elect the nominee and/or
(y) otherwise to solicit proxies from stockholders in support of such
proposal or nomination. 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.
2.5.3 Notwithstanding anything in the second sentence of Section 2.5.2
to the contrary, in the event that the number of directors to be elected
to the Board of Directors at the annual meeting is increased and there
is no public announcement by the corporation naming the nominees for the
additional directorships at least 100 days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Section shall also be considered timely, but
only with respect to nominees for the additional directorships, if it
shall be delivered to the Secretary of the corporation at the principal
executive offices of the corporation not later than the close of
business on the tenth (10th) day following the day on which such public
announcement is first made by the corporation.
2.6 Special Meetings of the Stockholders. Only such business shall be conducted
at a special meeting of the stockholders as shall have been brought before the
meeting pursuant to the corporation's notice of meeting. Nominations of persons
for election to the Board of Directors may be made at a special meeting of the
stockholders at which directors are to be elected pursuant to the corporation's
notice of meeting only by or at the direction of the Board of Directors.
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2.7 General.
2.7.1 Only persons who are nominated in accordance with the procedures
set forth in this Section shall be eligible to be elected at an annual
or special meeting of the stockholders of the corporation to serve as
directors and only such business shall be conducted at a meeting of the
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 chairman of the meeting shall have the power and
duty (A) 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 this Section (including
whether the stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made or solicited (or is part of a group which
solicited) or did not so solicit, as the case may be, proxies in support
of such stockholder's nominee or proposal in compliance with such
stockholder's representation as required by this Section) and (B) if any
proposed nomination or business was not made or proposed in compliance
with the Section, to declare that such nomination shall be disregarded
or that such proposed business shall not be transacted.
2.7.2 For purposes of this Section, "PUBLIC ANNOUNCEMENT" shall include
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
2.7.3 Notwithstanding the foregoing provisions of this Section, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this Section. Nothing in this Section shall be
deemed to affect any rights (A) of stockholders to request inclusion of
proposals in the corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act or (B) of the holders of any series of Preferred
Stock to elect directors pursuant to any applicable provisions of the
Restated Certificate of Incorporation.
NOTICE
2.8 Written notice of each annual or special meeting shall be given not fewer
than ten (10) days nor more than sixty (60) days before the date of the meeting,
to each stockholder entitled to vote at such meeting. Such notice shall state
the place, date and hour of the meeting and (i) in the case of the annual
meeting, those matters that the Board of Directors, at the time of the mailing
of the notice, intends to present for action by the stockholders, and, subject
to the provisions of applicable law, any other matters properly brought may be
presented at the meeting for action, or (ii) in the case of a special meeting,
the purpose or purposes for which the meeting was called, but, subject to the
provisions of applicable law, no other business may be presented at the special
meeting for action. The notice of any meeting at which directors are to be
elected shall include the names of nominees intended at the time of the notice
to be presented by the Board of Directors for election.
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2.9 Notice of a stockholders' meeting shall be given by mail or by other means
of written communication, addressed to the stockholder at the address of such
stockholder appearing on the books of the corporation or given by the
stockholder to the corporation for the purpose of notice. Notice by mail shall
be deemed to have been given at the time a written notice is deposited in the
United States mail, postage prepaid. Any other written notice shall be deemed to
have been given at the time it is personally delivered to the recipient or is
delivered to a common carrier for transmission, or actually transmitted by the
person giving the notice by electronic means, to the recipient.
QUORUM AND ADJOURNMENT
2.10 Except as otherwise provided by law, the Restated Certificate of
Incorporation or these Amended and Restated Bylaws, at each meeting of
stockholders the presence in person or by proxy of the holders of a majority in
voting power of the outstanding shares of stock entitled to vote at the meeting
shall be necessary and sufficient to constitute a quorum. In the absence of a
quorum, the stockholders so present may, by a majority in voting power thereof,
adjourn the meeting from time to time in the manner provided in Section 2.11
until a quorum shall attend.
2.11 Any meeting of stockholders, annual or special, may adjourn from time to
time to reconvene at the same or some other place, and notice need not be given
of any such 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 which might have been transacted at the
original meeting. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
VOTING
2.12 The stockholders entitled to notice of any meeting or to vote at any such
meeting shall be only persons in whose name shares stand on the stock records of
the corporation on the record date determined in accordance with Section 5.7.
2.13 Voting at meetings of stockholders need not be by written ballot. At all
meetings of stockholders for the election of directors, a plurality of the votes
cast shall be sufficient to elect. All other elections and questions shall,
unless otherwise provided by the Restated Certificate of Incorporation, these
Amended and Restated Bylaws, the rules or regulations of any stock exchange
applicable to the corporation or as otherwise provided by law or pursuant to any
regulation applicable to the corporation, be decided by the affirmative vote of
the holders of a majority in voting power of the shares of stock of the
corporation which are present in person or by proxy and entitled to vote
thereon.
2.14 Voting shall in all cases be subject to the provisions to the following
provisions:
2.14.1 The stockholders of the corporation shall not have the right to
cumulate their votes for the election of directors of the corporation.
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2.14.2 Shares held by an administrator, executor, guardian, conservator
or custodian may be voted by such holder either in person or by proxy,
without a transfer of such shares into the holder's name; and shares
standing in the name of a trust may be voted by the trustee of such
trust, either in person or by proxy, but no trustee shall be entitled to
vote shares held by such trust without a transfer of such shares into
the trust's name.
2.14.3 Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into the receiver's
name if authority to do so is contained in the order of the court by
which such receiver was appointed.
2.14.4 Except where otherwise agreed in writing between the parties, a
stockholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote the shares
so transferred.
2.14.5 Shares standing in the name of a minor may be voted and the
corporation may treat all rights incident thereto as exercisable by the
minor, in person or by proxy, whether or not the corporation has notice,
actual or constructive, of the minor's actual age, unless a guardian of
the minor's property has been appointed and written notice of such
appointment given to the corporation.
2.14.6 Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxyholder of such
other corporation as the Amended and Restated Bylaws of such other
corporation may prescribe or, in the absence of such provision, as the
board of directors of such other corporation may determine or, in the
absence of such determination, by the chairman of the board, president
or any vice president of such other corporation, or by any other person
authorized to do so by the chairman of the board, president or any vice
president of such other corporation. Shares which are purported to be
voted or any proxy purported to be executed in the name of a corporation
(whether or not any title of the person signing is indicated) shall be
presumed to be voted or the proxy executed in accordance with the
provisions of this clause, unless the contrary is shown.
2.14.7 Shares of the corporation owned by its subsidiaries shall not be
entitled to vote on any matter.
2.14.8 If shares stand of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in
common, husband and wife as community property, tenants by the entirety,
voting trustees, persons entitled to vote under a stockholder voting
agreement or otherwise, or if two or more persons (including
proxyholders) have the same fiduciary relationship respecting the same
shares, unless the Secretary is given written notice to the contrary and
is furnished with a copy of the instrument or order appointing them or
creating the relationship wherein it is so provided, their acts with
respect to voting shall have the following effect:
(a) If only one votes, such act binds all;
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(b) If more than one vote, the act of the majority so voting binds all;
or
(c) If more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionately.
If the instrument so filed or the registration of the shares shows that any such
tenancy is held in unequal interests, a majority or even split for the purpose
of this Section shall be a majority or even split in interest.
PROXIES
2.15 Each stockholder entitled to vote at a meeting of the stockholders may
authorize another person or persons to act for such stockholder by proxy, but no
such proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or by delivering
a proxy in accordance with applicable law bearing a later date to the Secretary.
2.16 A proxy or consent validly delivered to the corporation shall mean any
written authorization which is signed by the person executing the proxy, as well
as any electronic transmission (to include without limitation transmissions by
facsimile and by computer messaging systems), which is authorized by a
stockholder or the stockholder's attorney in fact, which gives another person or
persons power to vote with respect to the shares of such stockholder. A
stockholder may authorize another person or persons to act for such stockholder
as proxy by transmitting or authorizing the transmission of a telegram,
cablegram, or other means of electronic transmission to the person who will be
the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder
of the proxy to receive such transmission, provided that any such telegram,
cablegram or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the stockholder. If
it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors of election or, if there are no
inspectors, such other persons making that determination shall specify the
information upon which they relied. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission created pursuant to
this Section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
INSPECTORS OF ELECTION
2.17 In advance of any meeting of stockholders, the Board of Directors shall
appoint inspectors of election to act at such meeting and any adjournment
thereof. If inspectors of election are not so appointed, or if any persons so
appointed fail to appear or refuse to act, the chairman of any such meeting may,
and on the request of any stockholder or stockholder's proxy
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shall, make such appointment at the meeting. The number of inspectors shall be
either one or three. If appointed at a meeting on the request of one or more
stockholders or proxies, the majority of shares present shall determine whether
one or three inspectors are to be appointed.
2.18 The duties of such inspectors shall include: determining the number of
shares outstanding and the voting power of each; determining the shares
represented at the meeting; determining the existence of a quorum; determining
the authenticity, validity and effect of proxies; receiving votes, ballots or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all votes
or consents; determining when the polls shall close; determining the result; and
doing such acts as may be proper to conduct the election or vote with fairness
to all stockholders. If there are three inspectors of election, the decision,
act or certificate of a majority is effective in all respects as the decision,
act or certificate of all.
CONDUCT OF MEETING
2.19 The Chairman of the Board or, in the Chairman's absence, the Chief
Executive Officer shall preside as chairman at all meetings of the stockholders.
The chairman shall conduct each such meeting in a businesslike and fair manner,
but shall not be obligated to follow any technical, formal or parliamentary
rules or principles of procedure. The chairman's rulings on procedural matters
shall be conclusive and binding on all stockholders, unless at the time of a
ruling a request for a vote is made to the stockholders holding shares entitled
to vote and which are represented in person or by proxy at the meeting, in which
case the decision of a majority of such shares shall be conclusive and binding
on all stockholders. Without limiting the generality of the foregoing, the
chairman shall have all of the powers usually vested in the chairman of a
meeting of stockholders.
CONSENT OF ABSENTEES
2.20 The transactions of any meeting of stockholders, however called and
noticed, and wherever held, are as valid as though conducted at a meeting duly
held after regular call and notice, if a quorum is present either in person or
by proxy, and if, either before or after the meeting, each of the persons
entitled to vote, not present in person or by proxy, signs a written waiver of
notice, or a consent to the holding of the meeting or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting. Attendance of a
person at a meeting shall constitute a waiver of notice of and presence at such
meeting, except when the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by the General Corporation Law
of Delaware to be included in the notice but not so included, if such objection
is expressly made at the meeting. Neither the business to be transacted at nor
the purpose of any regular or special meeting of stockholders need be specified
in any written waiver of notice, consent to the holding of the meeting or
approval of the minutes thereof, except as provided in the General Corporation
Law of Delaware.
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ACTION WITHOUT MEETING
2.21 Subject to Section 228 of the General Corporation Law of Delaware relating
to consent of stockholders in lieu of meeting, 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 or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
shares 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 members having a
right to vote thereon were present and voted. Unless a record date for voting
purposes be fixed as provided in Section 5.7 of these Amended and Restated
Bylaws, the record date for determining shareholders entitled to give consent
pursuant to this Section 2.21, when no prior action by the Board has been taken,
shall be the day on which the first written consent is given.
ARTICLE 3. DIRECTORS
POWERS
3.1 Subject to limitations of the Restated Certificate of Incorporation, of
these Amended and Restated Bylaws and of the General Corporation Law of Delaware
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
Board of Directors and it shall have the final authority in matters of strategy
and policy matters for the corporation.
The Board of Directors may delegate management duties for the operation
of the business to those persons to whom authority is properly delegated by the
Board of Directors, including officers of the corporation, provided that the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised under the ultimate direction of the Board of
Directors. Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the Board of Directors shall
have the following powers in addition to the other powers enumerated in these
Amended and Restated Bylaws:
(A) To select and remove all officers (in accordance with the provisions
of these Amended and Restated Bylaws), agents and employees of the
corporation; prescribe the powers and duties for them as may not be
inconsistent with law, the Restated Certificate of Incorporation or
these Amended and Restated Bylaws; fix their compensation and require
from them an affidavit providing for the good faith exercise of their
duties only in the best interests of the corporation.
(B) To conduct, manage and control the affairs and business of the
corporation and to make such rules and regulations therefor not
inconsistent with law, the Restated Certificate of Incorporation or
these Amended and Restated Bylaws, as they may deem best.
(C) To adopt, make and use a corporate seal, and to prescribe the forms
of certificates of stock, and to alter the form of such seal and of such
certificates from time to time as they may deem best.
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(D) To authorize the issuance of shares of stock of the corporation from
time to time, upon such terms and for such consideration as may be
lawful.
(E) To borrow money and incur indebtedness for the purposes of the
corporation, and to cause to be executed and delivered, in the corporate
name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and securities
therefor.
(F) To make, repeal, alter, amend and rescind any or all of these
Amended and Restated Bylaws.
NUMBER OF DIRECTORS
3.2 Subject to the rights of holders of any series of preferred stock, the
authorized number of directors of the corporation shall be not less than six
nor more than twelve. Within such limits, the Board of Directors may fix the
exact number of directors by resolution duly adopted by the Board of Directors.
Initially, the exact number of directors shall be eleven. No reduction of the
authorized number of directors shall have the effect of removing any director
prior to the expiration of the director's term of office.
ELECTION AND TERM OF OFFICE
3.3 Only persons who are nominated by, or at the direction of the Board of
Directors or the Chairman of the Board, or by a stockholder who has given timely
written notice to the Secretary in accordance with these Amended and Restated
Bylaws, will be eligible for election as directors of the corporation. For a
person to be qualified to serve as a director of the corporation, such person
need not be an employee or stockholder of the corporation during his or her
directorship.
3.4 The Board shall be divided into three classes in accordance with the
provisions of the Restated Certificate of Incorporation of the corporation. At
each annual meeting of the stockholders beginning with the first annual meeting
of the stockholders, the successors of the class of directors whose term expires
at that meeting shall be elected to hold office for a term expiring at the
annual meeting of stockholders to be held in the third year following the year
of their election, with each director in each class to hold office until his or
her successor is duly elected and qualified or until his or her earlier death,
resignation or removal. If any such annual meeting is not held or the directors
are not elected thereat, the directors may be elected at any special meeting of
stockholders held for that purpose.
3.5 Any director, or the entire Board, may be removed only for cause, by the
affirmative vote of a majority of the shares then entitled to vote at the
election of directors.
RESIGNATIONS AND VACANCIES
3.6 Any director may resign effective upon giving written notice to the Chairman
of the Board, the Chief Executive Officer, the Secretary or the Board of
Directors, unless the notice specifies a later time for the effectiveness of
such resignation. If the resignation is effective at a future time, a successor
may be elected to take office when the resignation becomes effective.
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Any newly-created directorship resulting from an increase in the
authorized number of directors or any vacancies in the Board of Directors
occurring by reason of death, resignation, retirement, disqualification or
removal may be filled by a majority of the remaining directors, though less than
a quorum, or by a sole remaining director, and each director so elected shall
hold office until the next annual meeting and until such director's successor
has been elected and qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in case of the death, resignation or removal of any director, or if the
authorized number of directors is increased, or if the stockholders fail, at any
annual or special meeting of the stockholders at which any director or directors
are elected, to elect the full authorized number of directors to be voted for at
that meeting.
MEETINGS OF THE BOARD OF DIRECTORS
3.7 Regular or special meetings of the Board of Directors shall be held at any
place within or without the State of Delaware which has been designated from
time to time by the Board of Directors. In the absence of such designation,
regular meetings shall be held at the principal executive office of the
corporation.
3.8 Following each annual meeting of stockholders, the Board of Directors shall
hold a regular meeting for the purpose of organization, election of officers and
the transaction of other business. Other regular meetings of the Board of
Directors shall be held without call on such dates and at such times as may be
fixed by the Board of Directors. Call and notice of all regular meetings of the
Board of Directors are hereby dispensed with.
3.9 Special meetings of the Board of Directors for any purpose or purposes may
be called at any time by the Chairman of the Board, the Chief Executive Officer
or by any two directors.
Special meetings of the Board of Directors shall be held upon four days'
written notice or 48 hours' notice given personally or by telephone, including a
voice messaging system or other system or technology designed to record and
communicate messages, telegraph, telex, facsimile electronic mail or other
similar means of communication. Any such notice shall be addressed or delivered
to each director at such director's address as it is shown upon the records of
the corporation or as may have been given to the corporation by the director for
purposes of notice or, if such address is not shown on such records or is not
readily ascertainable, at the place in which the meetings of the directors are
regularly held.
Notice by mail shall be deemed to have been given at the time a written
notice is deposited in the United States mail, first-class postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone or wireless, to
the recipient or to a person at the office of the recipient who the person
giving the notice has reason to believe will promptly communicate it to the
recipient.
QUORUM
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3.10 A majority of the whole Board of Directors constitutes a quorum of the
Board of Directors for the transaction of business, except to adjourn as
provided below in this Article. Every act or decision done or made by a majority
of the directors present at a meeting duly held at which a quorum is present
shall be regarded as the act of the Board of Directors, unless a greater number
be required by law or by the Restated Certificate of Incorporation. 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.
PARTICIPATION BY CONFERENCE TELEPHONE
3.11 Any meeting, regular or special, may be held by conference telephone or
similar communication equipment, so long as all directors participating in the
meeting can hear one another and all such directors shall be deemed to be
present in person at the meeting.
WAIVER OF NOTICE
3.12 Notice of a meeting 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.
ADJOURNMENT
3.13 A majority of the directors present, whether or not a quorum is present,
may adjourn any directors' meeting to another time and place. Notice of the time
and place of holding an adjourned meeting need not be given to absent directors
if the time and place be fixed at the meeting adjourned, except as provided in
the next sentence. If the meeting is adjourned for more than twenty-four (24)
hours, notice of any adjournment to another time or place shall be given prior
to the time of the adjourned meeting to the directors who were not present at
the time of the adjournment.
FEES AND COMPENSATION
3.14 Directors and members of committees may receive such compensation, if any,
for their services, and such reimbursement for expenses, as may be fixed or
determined by the Board of Directors.
ACTION WITHOUT MEETING
3.15 Any action required or permitted to be taken by the Board of Directors may
be taken without a meeting if all members of the Board of Directors shall
consent in writing to such action. Such consent or consents shall have the same
effect as a unanimous vote of the Board of Directors and shall be filed with the
minutes of the proceedings of the Board of Directors.
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COMMITTEES
3.16 The Board of Directors may appoint one or more committees, each consisting
of one or more directors, and delegate to such committees any of the powers and
authority of the Board of Directors, except no such committee shall have power
or authority in reference to the following:
(A) Approving, adopting or recommending to the stockholders any action
or matter expressly required by the General Corporation Law of Delaware
to be submitted to the stockholders for approval; or
(B) Adopting, altering, amending or repealing these Amended and Restated
Bylaws or any of them.
Any such committee must be designated, and the members or alternate
members thereof appointed, by resolution adopted by a majority of the authorized
number of directors and any such committee may be designated an Executive
Committee or by such other name as the Board of Directors shall specify.
Alternate members of a committee may replace any absent member at any meeting of
the committee. The Board of Directors shall have the power to prescribe the
manner in which proceedings of any such committee shall be conducted. In the
absence of any such prescription, such committee shall have the power to
prescribe the manner in which its proceedings shall be conducted. Unless the
Board of Directors or such committee shall otherwise provide, the regular and
special meetings and other actions of any such committee shall be governed by
the provisions of this Article applicable to meetings and actions of the Board
of Directors. Minutes shall be kept of each meeting of each committee.
3.17 The Board shall have the following standing committees: Audit and
Compensation.
3.17.1 The Audit Committee shall be responsible for reviewing the
activities of the corporation to ensure that such activities are being
conducted within the boundaries of corporate policy and appropriate
regulatory and legal requirements and for ensuring the integrity of
financial information supplied to the stockholders. The Audit Committee
also shall make recommendations to the Board of Directors after
consultation with the Chief Financial Officer as to the selection of
independent public accountants to examine the consolidated financial
statements of the corporation and its subsidiaries. The Audit Committee
also shall discuss with the independent public accountants the scope of
their examination, recommend supplemental audit reviews or audit steps
as deemed desirable, and review the accounting policies of the
corporation. The Audit Committee also shall be available to receive
reports, suggestions, questions and recommendations from the independent
public accountants, the Chief Financial Officer and the General Counsel.
It also shall confer with those parties in order to assure the
sufficiency and effectiveness of the programs being followed by
corporate officers in the area of compliance with the law and conflicts
of interest.
3.17.2 The Compensation Committee shall have the responsibility for the
compensation of the senior executives and other employees of the
corporation including salaries and benefits. In carrying out its duties,
the committee shall review and approve overall executive compensation
programs which are market competitive for the officers of the
corporation, and shall
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review the specific salaries of senior executives of the corporation.
The Compensation Committee shall also review and make recommendations to
the Board of Directors with respect to the corporation's overall
compensation program for directors and officers, including salaries,
employee benefit plans, stock options granted, equity incentive plans
and payment of bonuses. The Compensation Committee shall also have all
additional powers necessary to carry out its responsibilities and such
other duties as may be assigned by the Board from time to time.
3.18 The number of members of the Joint Business Development Committee (as
defined in Article IX of the Restated Certificate of Incorporation) shall be six
and such persons need not be members of the Board of Directors.
ARTICLE 4. OFFICERS
OFFICERS
4.1 The officers of the corporation shall be a Chief Executive Officer, a
President, a Secretary and a Treasurer. The corporation may also have, at the
discretion of the Board of Directors, a Chairman of the Board, one or more Vice
Chairmen of the Board, one or more Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers, and such other officers as may be
elected or appointed in accordance with the provisions of this Article.
ELECTION
4.2 The officers of the corporation, except such officers as may be elected or
appointed in accordance with the provisions of this Article, shall be chosen
annually by, and shall serve at the pleasure of, the Board of Directors, and
shall hold their respective offices until their resignation, removal, or other
disqualification from service, or until their respective successors shall be
elected.
SUBORDINATE OFFICERS
4.3 The Board of Directors may elect, and may empower the Chief Executive
Officer to appoint, such other officers as the business of the corporation may
require, each of whom shall hold office for such period, have such authority and
perform such duties as are provided in these Amended and Restated Bylaws or as
the Board of Directors may from time to time determine.
REMOVAL AND RESIGNATION
4.4 Any officer may be removed, either with or without cause, by the Board of
Directors at any time or, except in the case of an officer chosen by the Board
of Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors. Any such removal shall be without prejudice to the
rights, if any, of the officer under any contract of employment of the officer.
Any officer may resign at any time by giving written notice to the corporation,
but without prejudice to the rights, if any, of the corporation under any
contract to which the officer is a party. Any such resignation shall take effect
at the date of the receipt of such notice or at any
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later time specified therein and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
VACANCIES
4.5 A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these Amended and Restated Bylaws for regular election or appointment to such
office.
THE CHAIRMAN OF THE BOARD
4.6 The Chairman of the Board, if any, shall preside at all meetings of the
Board of Directors and at all meetings of shareholders, and he or she shall have
and may exercise such powers as are, from time to time, assigned to him or her
by the Board of Directors and as may be provided by law.
4.7 In the absence of the Chairman of the Board, the Vice Chairman of the Board,
if any, shall preside at all meetings of the Board of Directors and the Chief
Executive Officer shall preside at all meetings of shareholder, and they shall
have and may exercise such powers as are, from time to time, assigned to the
Chairman by the Board of Directors and as may be provided by law.
THE CHIEF EXECUTIVE OFFICER AND PRESIDENT
4.8 Subject to such powers, if any, as may be given by the Board of Directors to
the Chairman of the Board, if there be such an officer, the Chief Executive
Officer is the general manager and chief executive officer of the corporation
and has, subject to the control of the Board of Directors, general supervision,
direction and control of the business and officers of the corporation. In the
absence of the Chairman of the Board, or if there be none, the Chief Executive
Officer shall preside at all meetings of the stockholders and at all meetings of
the Board of Directors. The Chief Executive Officer has the general powers and
duties of management usually vested in a chief executive officer and general
manager of a corporation and such other powers and duties as may be prescribed
by the Board of Directors.
4.9 In the absence or disability of the Chief Executive Officer, the President
shall perform all the duties of the Chief Executive Officer and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
Chief Executive Officer. The President shall have such other powers and perform
such other duties as from time to time may be prescribed by the Board of
Directors and the Chief Executive Officer.
THE SECRETARY AND ASSISTANT SECRETARY
4.10 The Secretary shall keep or cause to be kept, at the principal executive
office and such other place as the Board of Directors may order, a book of
minutes of all meetings of stockholders, the Board of Directors and its
committees, with the time and place of holding, whether regular or special, and
if special, how authorized, the notice thereof given, the names of those present
at Board of Directors and committee meetings, the number of shares present or
represented at stockholders' meetings, and the proceedings thereof. The
Secretary shall keep, or
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cause to be kept, a copy of these Amended and Restated Bylaws of the corporation
at the principal executive office or such other place as the Board of Directors
may order.
The Secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the corporation's transfer agent or
registrar, if one has been appointed, a share register, or a duplicate share
register, showing the names of the stockholders and their addresses, the number
and classes of shares held by each, the number and date of certificates issued
for the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors and any committees thereof
required by these Amended and Restated Bylaws or by law to be given, shall keep
the seal of the corporation in safe custody, and shall have such other powers
and perform such other duties as may be prescribed by the Board of Directors.
4.11 The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election) shall, in absence of
the Secretary or in the event of his or her inability or refusal to act, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
THE TREASURER AND ASSISTANT TREASURER
4.12 The Treasurer is the chief financial officer of the corporation and shall
keep and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the corporation, and
shall send or cause to be sent to the stockholders of the corporation such
financial statements and reports as are by law or these Amended and Restated
Bylaws required to be sent to them. The books of account shall at all times be
open to inspection by any director.
The Treasurer shall deposit all moneys and other valuables in the name
and to the credit of the corporation with such depositaries as may be designated
by the Board of Directors. The Treasurer shall disburse the funds of the
corporation as may be ordered by the Board of Directors, shall render to the
President and the directors, whenever they request it, an account of all
transactions as Treasurer and of the financial condition of the corporation, and
shall have such other powers and perform such other duties as may be prescribed
by the Board of Directors.
4.13 The Assistant Treasurer, or if there be more than one, the Assistant
Treasurers in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election) shall, in absence of
the Treasurer or in the event of his or her inability or refusal to act, perform
the duties and exercise the powers of the Treasurer and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
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ARTICLE 5. CERTIFICATE OF STOCK
5.1 Every holder of stock in the corporation shall be entitled to have a
certificate, signed by, or in the name of the corporation by, the Chairman or
Vice Chairman of the Board, or the President or a Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary,
certifying the number of shares owned by the holder in the corporation.
5.2 Certificates may be issued for partly paid shares and in such case upon the
face or back of the certificates issued to represent any such partly paid
shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified.
5.3 If the corporation shall be authorized to issue more than one class of stock
or more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the corporation shall issue to represent such class or series of stock, a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
5.4 Any of or all 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 corporation with the same effect as if such person were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
5.5 The Board of Directors may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his or her legal representative, to
advertise the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
TRANSFER OF STOCK
5.6 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
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authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
FIXING RECORD DATE
5.7 In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of the stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date: (a) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, not be more than
60 nor less than 10 days before the date of such meeting; (b) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than 10 days from the date upon
which the resolution fixing the record date is adopted by the Board of Directors
and (c) in the case of any other action, shall not be more than 60 days prior to
such other action. If no record date is fixed: (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 of the Board of Directors is
required by law or the Restated Certificate of Incorporation, shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation in accordance with
applicable law, or, if prior action by the Board of Directors is required by law
or the Restated Certificate of Incorporation, shall be at the close of business
on the day on which the Board of Directors adopts the resolution taking such
prior action and (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. 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.
REGISTERED STOCKHOLDERS
5.8 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, and to hold liable for calls and assessments a person
registered on its books as the owner of shares and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
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ARTICLE 6. GENERAL PROVISIONS
MAINTENANCE AND INSPECTION OF RECORDS
6.1 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 accompanies by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in the State of Delaware or at its
principal executive office.
6.2 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 the director's 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.
ANNUAL REPORT TO STOCKHOLDERS
6.3 At any point at which the corporation has less than 100 holders of record of
its shares, this corporation expressly waives the annual report to stockholders.
Notwithstanding the waiver of such annual report by the corporation, nothing
herein shall be interpreted as prohibiting the Board of Directors from issuing
voluntary annual or other periodic reports to stockholders during such time as
the corporation has less than 100 holders of record.
CHECKS; DRAFTS; EVIDENCE OF INDEBTEDNESS
6.4 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
the 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.
ENDORSEMENT OF DOCUMENTS; CONTRACTS
6.5 Subject to the provisions of applicable law, any note, mortgage, evidence of
indebtedness, contract, share certificate, conveyance or other instrument in
writing and any assignment or endorsements thereof executed or entered into
between the corporation and any other person, when signed by the Chairman of the
Board, the Chief Executive Officer, the President or any Vice President and the
Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer of
the corporation shall be valid and binding on the corporation in the absence of
actual knowledge on the part of the other person that the signing officers had
no authority to execute the same. Any such instruments may be signed by any
other person or
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persons and in such manner as from time to time shall be determined by the Board
of Directors, and, unless so authorized by the Board of Directors, 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 amount.
REPRESENTATION OF SHARES OF OTHER CORPORATIONS
6.6 The Chief Executive Officer or any other officer or officers authorized by
the Board of Directors or the Chief Executive Officer are each authorized to
vote, represent and exercise on behalf of the corporation all rights incident to
any and all shares of any other corporation or corporations standing in the name
of the corporation. The authority herein granted may be exercised either by any
such officer in person or by any other person authorized so to do by proxy or
power of attorney duly executed by said officer.
STOCK PURCHASE PLANS
6.7 The corporation may adopt and carry out a stock purchase plan or agreement
or stock option plan or agreement providing for the issue and sale for such
consideration as may be fixed of its unissued shares, or of issued shares
acquired or to be acquired, to one or more of the employees or directors of the
corporation or of a subsidiary or to a trustee on their behalf and for the
payment for such shares in installments or at one time, and may provide for
aiding any such persons in paying for such shares by compensation for services
rendered, promissory notes or otherwise.
Any such stock purchase plan or agreement or stock option plan or
agreement may include, among other features, the fixing of eligibility for
participation therein, the class and price of shares to be issued or sold under
the plan or agreement, the number of shares which may be subscribed for, the
method of payment therefor, the reservation of title until full payment
therefor, the effect of the termination of employment, an option or obligation
on the part of the corporation to repurchase the shares upon termination of
employment, restrictions upon transfer of the shares, the time limits of and
termination of the plan, and any other matters, not in violation of applicable
law, as may be included in the plan as approved or authorized by the Board of
Directors or any committee of the Board of Directors.
CONSTRUCTION AND DEFINITIONS
6.8 Unless the context otherwise requires, the general provisions, rules of
construction and definitions contained in the General Corporation Law of
Delaware shall govern the construction of these Amended and Restated Bylaws.
AMENDMENTS
6.9 These Amended and Restated Bylaws may be amended or repealed either by
approval of the stockholders entitled to vote on such action or by the approval
of the Board of Directors, for those amendments to the Amended and Restated
Bylaws for which approval of the Board of Directors alone is sufficient under
the General Corporation Law of Delaware.
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FISCAL YEAR
6.10 The fiscal year of the corporation shall be fixed by resolution of the
Board of Directors.
DIVIDENDS
6.11 Dividends upon the capital stock of the corporation, subject to the
provisions of the Restated Certificate of Incorporation, if any, may be declared
by the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Restated Certificate of Incorporation.
6.12 Before payment of any dividend, there may be set aside out of any funds of
the corporation available for dividends such sum or sums as the directors from
time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purposes as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
LOANS TO OFFICERS AND EMPLOYEES
6.13 The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiaries, including any officer or employee who is a director of the
corporation or its subsidiaries, whenever, in the judgment of the Board of
Directors, such loan, guarantee or assistance may reasonably be expected to
benefit the corporation. The loan, guarantee or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing in these Amended and Restated Bylaws shall be
deemed to deny, limit or restrict the powers of guaranty or warranty of the
corporation at common law or under any statute
ARTICLE 7. INDEMNIFICATION
RIGHT TO INDEMNIFICATION
7.1 The corporation shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended,
any person (an "Indemnitee") who was or is made or is threatened to be made a
party or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "PROCEEDING"), by reason of the
fact that such person, or a person for whom he or she is the legal
representative, is or was a director or officer of the corporation or, while a
director or officer of the corporation, is or was serving at the written request
of the corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or non-profit
entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees) reasonably
incurred by such Indemnitee. Notwithstanding the preceding sentence, except as
otherwise provided in Section 7.3, the corporation shall be required to
indemnify an Indemnitee in connection with a proceeding (or part thereof)
commenced by such Indemnitee only if the commencement of such proceeding (or
part thereof) by the Indemnitee was authorized by the Board of Directors.
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PREPAYMENT OF EXPENSES
7.2 The corporation shall pay the expenses (including attorneys' fees) incurred
by an Indemnitee in defending any proceeding in advance of its final
disposition, provided, however, that, to the extent required by law, such
payment of expenses in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Indemnitee to repay all
amounts advanced if it should be ultimately determined that the Indemnitee is
not entitled to be indemnified under this Article or otherwise.
CLAIMS
7.3 If a claim for indemnification of advancement of expenses under this Article
is not paid in full within 60 days after a written claim therefor by the
Indemnitee has been received by the corporation, the Indemnitee may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the corporation shall have the burden of proving that the Indemnitee is
not entitled to the requested indemnification or advancement of expenses under
applicable law.
NONEXCLUSIVITY OF RIGHTS
7.4 The rights conferred on any Indemnitee by this Article shall not be
exclusive of any other rights which such Indemnitee may have or hereafter
acquire under any statute, provision of the Restated Certificate of
Incorporation, these Amended and Restated Bylaws, agreement, vote of the
stockholders or disinterested directors or otherwise.
OTHER SOURCES
7.5 The corporation's obligation, if any, to indemnify or to advance expenses to
any Indemnitee who was or is serving at its request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
enterprise or non-profit entity shall be reduced by any amount such Indemnitee
may collect as indemnification or advancement of expenses from such other
corporation, partnership, joint venture, trust, enterprise or non-profit entity.
AMENDMENT OR REPEAL
7.6 Any repeal or modification of the foregoing provisions of this Article shall
not adversely affect any right or protection hereunder of any Indemnitee in
respect of any act or omission occurring prior to the time of such repeal or
modification.
OTHER INDEMNIFICATION AND PREPAYMENT OF EXPENSES
7.7 This Article shall not limit the right of the corporation, to the extent and
in the manner permitted by law, to indemnify and to advance expenses to persons
other than Indemnitees when and as authorized by appropriate corporate action.
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INSURANCE
7.8 The corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the corporation would have the power
to indemnify such person against such expense, liability or loss under the law.
INDEMNITY AGREEMENTS
7.9 The corporation may enter into agreements with any director, officer,
employee or agent of the corporation, providing for indemnification to the
fullest extent permissible under the law and the Restated Certificate of
Incorporation.
23
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AMENDED AND RESTATED BYLAWS OF
COMBIMATRIX CORPORATION
(A DELAWARE CORPORATION)
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TABLE OF CONTENTS
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ARTICLE 1 OFFICES...........................................................................1
ARTICLE 2 MEETINGS OF STOCKHOLDERS..........................................................1
Annual Meetings.....................................................................1
Special Meetings....................................................................2
Business Which May Be Conducted.....................................................2
Notice..............................................................................4
Quorum And Adjournment..............................................................5
Voting..............................................................................5
Proxies.............................................................................7
Inspectors Of Election..............................................................7
Conduct Of Meeting..................................................................8
Consent Of Absentees................................................................8
Action Without Meeting..............................................................9
ARTICLE 3 DIRECTORS.........................................................................9
Powers..............................................................................9
Number Of Directors................................................................10
Election And Term Of Office........................................................10
Resignations And Vacancies.........................................................10
Meetings Of The Board Of Directors.................................................11
Quorum.............................................................................11
Participation By Conference Telephone..............................................12
Waiver Of Notice...................................................................12
Adjournment........................................................................12
Fees And Compensation..............................................................12
Action Without Meeting.............................................................12
Committees.........................................................................12
ARTICLE 4 OFFICERS.........................................................................13
Officers...........................................................................13
Election...........................................................................13
Subordinate Officers...............................................................13
Removal And Resignation............................................................13
Vacancies..........................................................................14
The Chairman Of The Board..........................................................14
The Chief Executive Officer And President..........................................14
The Secretary And Assistant Secretary..............................................15
The Treasurer And Assistant Treasurer..............................................15
ARTICLE 5 CERTIFICATE OF STOCK.............................................................16
Lost Certificates..................................................................16
Transfer Of Stock..................................................................17
Fixing Record Date.................................................................17
Registered Stockholders............................................................17
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TABLE OF CONTENTS
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ARTICLE 6 GENERAL PROVISIONS...............................................................18
Maintenance And Inspection Of Records..............................................18
Annual Report To Stockholders......................................................18
Checks; Drafts; Evidence Of Indebtedness...........................................18
Endorsement Of Documents; Contracts................................................18
Representation Of Shares Of Other Corporations.....................................19
Stock Purchase Plans...............................................................19
Construction And Definitions.......................................................19
Amendments.........................................................................19
Fiscal Year........................................................................20
Dividends..........................................................................20
Loans To Officers And Employees....................................................20
ARTICLE 7 INDEMNIFICATION..................................................................20
Right To Indemnification...........................................................20
Prepayment Of Expenses.............................................................21
Claims.............................................................................21
Nonexclusivity Of Rights...........................................................21
Other Sources......................................................................21
Amendment Or Repeal................................................................21
Other Indemnification And Prepayment Of Expenses...................................21
Insurance..........................................................................22
Indemnity Agreements...............................................................22
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