AMENDED AND RESTATED BYLAWS
OF
[INSERT FULL LEGAL NAME OF COMBINED COMPANY]
These Amended and Restated Bylaws (these "Bylaws") of [Insert Full Legal Name of Combined Company], a Delaware corporation (the "Corporation"), are adopted and effective as of [Insert Date], in connection with the [Insert description of transaction, e.g., business combination/merger].
These Bylaws amend and restate in their entirety the bylaws of the Corporation as in effect immediately prior to the effectiveness hereof. The Corporation's Amended and Restated Certificate of Incorporation, as filed with the Secretary of State of the State of Delaware, as it may be amended, restated, supplemented, or otherwise modified from time to time (the "Certificate of Incorporation"), shall govern to the extent of any conflict between the Certificate of Incorporation and these Bylaws. The Delaware General Corporation Law, as the same exists or may hereafter be amended (the "DGCL"), shall govern to the extent of any conflict between the DGCL and either the Certificate of Incorporation or these Bylaws.
ARTICLE I
OFFICES
Section 1.1 Registered Office
The registered office of the Corporation in the State of Delaware shall be as set forth in the Certificate of Incorporation. The registered agent of the Corporation at such office shall be the person or entity identified in the Certificate of Incorporation or as otherwise duly designated in accordance with applicable law.
Section 1.2 Other Offices
The Corporation may also have offices at such other places, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the "Board of Directors" or the "Board") may from time to time determine or as the business of the Corporation may require.
The principal executive office of the Corporation shall be located at such place as the Board of Directors may designate from time to time, including, if desired, at [Insert address of principal executive office].
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings
Meetings of stockholders shall be held at such place, if any, within or outside the State of Delaware, as may be designated from time to time by the Board of Directors and stated in the notice of meeting or in a duly executed waiver of notice thereof.
The Board of Directors may, in its sole discretion, determine that any meeting of stockholders shall not be held at any place, but instead shall be held solely by means of remote communication to the fullest extent permitted by Section 211(a)(2) of the DGCL. If authorized by the Board of Directors, and subject to such guidelines and procedures as the Board of Directors may adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication, participate in the meeting and be deemed present in person and vote at such meeting, whether such meeting is held at a designated place or solely by means of remote communication, provided that the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder, to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, and to maintain a record of any vote or other action taken by means of remote communication, all as required by the DGCL.
Section 2.2 Annual Meetings
An annual meeting of stockholders shall be held on such date, at such time, and at such place, if any, as shall be designated by the Board of Directors and stated in the notice of meeting. The purpose of the annual meeting shall be to elect directors and to transact such other business as may properly be brought before the meeting in accordance with the Certificate of Incorporation, these Bylaws, and applicable law.
Failure to hold an annual meeting at the designated time shall not work a forfeiture or dissolution of the Corporation or otherwise invalidate any corporate action.
Section 2.3 Special Meetings
Special meetings of stockholders may be called only by the Chairperson of the Board, the Chief Executive Officer, or by resolution adopted by a majority of the total number of directors then in office.
Special meetings of stockholders may not be called by any stockholder or group of stockholders unless otherwise expressly provided in the Certificate of Incorporation.
Business transacted at any special meeting of stockholders shall be limited to the purpose or purposes stated in the notice of meeting, and the stockholders may consider only such business as shall have been specified in such notice.
Section 2.4 Notice of Meetings
Whenever stockholders are required or permitted to take any action at a meeting, written notice of the meeting shall be given stating the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by law, the Certificate of Incorporation, or these Bylaws, such notice shall be given not fewer than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting.
Notice shall be given personally, by mail, or by electronic transmission in the manner provided in Section 232 of the DGCL. If mailed, notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at the stockholder's address as it appears on the records of the Corporation. If given by electronic transmission, notice shall be deemed given as provided in the DGCL.
Whenever notice is required to be given under the DGCL, the Certificate of Incorporation, or these Bylaws, a written waiver thereof, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a stockholder at a meeting shall constitute a waiver of notice of such meeting, except when the stockholder attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting was not lawfully called or convened.
Section 2.5 Quorum
Unless otherwise required by law, the Certificate of Incorporation, or these Bylaws, the holders of a majority of the voting power of the outstanding shares of stock entitled to vote generally at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business at any meeting of stockholders.
If, however, such quorum shall not be present or represented at any meeting of stockholders, then the chairperson of the meeting, any officer entitled to preside thereat, or the holders of a majority of the voting power of the shares present in person or represented by proxy and entitled to vote thereat may adjourn the meeting from time to time in the manner permitted by law until a quorum shall be present or represented.
When a meeting is adjourned to another date, time, or place, if any, or solely by means of remote communication, if any, notice need not be given of the adjourned meeting if the date, time, place, if any, and means of remote communication, if any, are announced at the meeting at which the adjournment is taken, unless the adjournment is for more than thirty (30) days or, after the adjournment, a new record date is fixed for the adjourned meeting, in either of which cases notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
At any adjourned meeting at which a quorum is present or represented, the Corporation may transact any business that might have been transacted at the original meeting.
Section 2.6 Voting
Except as otherwise provided in the Certificate of Incorporation or required by applicable law, each stockholder shall be entitled to one (1) vote for each share of common stock held of record by such stockholder on the applicable record date.
Unless otherwise provided in the Certificate of Incorporation, directors shall be elected by a plurality of the votes cast by the shares present in person or represented by proxy at a meeting of stockholders and entitled to vote on the election of directors.
Except as otherwise required by the DGCL, the Certificate of Incorporation, or these Bylaws, and except as otherwise provided by the rights of any class or series of stock, all other matters brought before any meeting of stockholders shall be decided by the affirmative vote of the holders of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the matter.
Cumulative voting with respect to the election of directors shall not be permitted unless and solely to the extent expressly provided in the Certificate of Incorporation.
Section 2.7 Proxies
Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy in any manner permitted by applicable law, including by an instrument in writing or by transmission permitted by Section 212 of the DGCL.
No proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable only if and to the extent provided by applicable law.
A proxy may be revoked by the stockholder at any time prior to its exercise, unless such proxy is irrevocable in accordance with law, by filing with the Secretary of the Corporation a written notice of revocation, by delivering a duly executed proxy bearing a later date, or by attending the meeting and voting in person.
Section 2.8 List of Stockholders
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; provided, however, that if the record date for determining the stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date. Such list shall be arranged in alphabetical order and shall show 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, in the manner required by Section 219 of the DGCL. If the meeting is to be held at a place, 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. If the meeting is to be held solely by means of remote communication, then the list shall be open to the examination of any stockholder during the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
Section 2.9 Record Date
In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) nor fewer than ten (10) days before the date of such meeting.
If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be determined in accordance with Section 213 of the DGCL.
Section 2.10 Action by Written Consent of Stockholders
Subject to the rights of the holders of any class or series of stock having a preference over the common stock as to dividends or upon liquidation, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders, unless otherwise expressly provided in the Certificate of Incorporation.
Section 2.11 Inspectors of Election
Before any meeting of stockholders, the Board of Directors may appoint one or more inspectors of election to act at such meeting or any adjournment thereof. If no inspectors of election are so appointed, the chairperson of the meeting may, and on the request of any stockholder or stockholder's proxy shall, appoint one or more inspectors of election.
The inspector or inspectors of election shall perform the duties prescribed by Section 231 of the DGCL and shall take and sign any oath required by law. The inspector or inspectors may appoint or retain other persons or entities to assist in the performance of the duties of the inspectors. The inspector or inspectors shall ascertain the number of shares outstanding and the voting power of each, determine the shares represented at the meeting and the validity of proxies and ballots, count all votes and ballots, determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and certify the determination of the number of shares represented at the meeting and the count of all votes and ballots.
Section 2.12 Conduct of Meetings
Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or, in the Chairperson's absence, by the Chief Executive Officer, or, in the absence of the Chief Executive Officer, by such other person as the Board of Directors may designate, or, in the absence of such designation, by such person as may be selected by the holders of a majority of the voting power of the shares present in person or represented by proxy and entitled to vote at the meeting.
The Secretary of the Corporation shall act as secretary of the meeting, but in the Secretary's absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
The Board of Directors may adopt by resolution such rules, regulations, and procedures for the conduct of meetings of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules, regulations, and procedures as adopted by the Board of Directors, the chairperson of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations, and procedures and to do all such acts as, in the judgment of such chairperson, are appropriate for the proper conduct of the meeting. Such rules, regulations, or procedures, whether adopted by the Board of Directors or prescribed by the chairperson of the meeting, may include, without limitation, the following:
• the establishment of an agenda or order of business for the meeting;
• rules and procedures for maintaining order and safety;
• limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized proxies, and such other persons as the chairperson shall determine;
• restrictions on entry to the meeting after the time fixed for commencement thereof; and
• limitations on the time allotted to questions or comments by participants.
The chairperson of the meeting shall have the power to adjourn the meeting from time to time, whether or not a quorum is present, as permitted by these Bylaws and applicable law.
Section 2.13 Advance Notice of Stockholder Business and Nominations
(a) Annual Meeting Nominations and Business. At an annual meeting of stockholders, only such business shall be conducted, and only such nominations for election to the Board of Directors shall be made, as shall have been properly brought before the annual meeting. To be properly brought before an annual meeting, business must be:
1. specified in the notice of meeting or otherwise brought before the meeting by or at the direction of the Board of Directors;
2. brought before the meeting by or at the direction of any committee of the Board of Directors authorized to do so; or
3. otherwise properly brought before the meeting by a stockholder of the Corporation who:
• was a stockholder of record at the time of giving the notice provided for in this Section 2.13 and at the time of the annual meeting;
• is entitled to vote at the meeting; and
• has timely complied in proper written form with the notice procedures set forth in this Section 2.13.
In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder or for nominations by a stockholder to be properly made at an annual meeting, the stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice shall be delivered to or mailed and received at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day and not later than the close of business on the ninetieth (90th) day prior to the first anniversary of the preceding year's annual meeting; provided, however, that in the event the date of the annual meeting is advanced by more than thirty (30) days, or delayed by more than thirty (30) days, from the first anniversary of the preceding year's annual meeting, notice by the stockholder to be timely must be so delivered or received not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of (i) the ninetieth (90th) day prior to such annual meeting and (ii) the tenth (10th) day following the day on which public announcement of the date of such annual meeting is first made by the Corporation.
In no event shall any adjournment, recess, postponement, or rescheduling of an annual meeting, or any announcement thereof, commence a new time period, or extend any time period, for the giving of a stockholder's notice as described above.
(b) Information Required in Notice. A stockholder's notice to the Secretary with respect to business proposed to be brought before an annual meeting shall set forth:
1. as to each matter the stockholder proposes to bring before the annual meeting:
• a reasonably detailed 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;
• the reasons for conducting such business at the meeting; and
• any substantial interest in such business of the proposing stockholder, any Stockholder Associated Person, and any beneficial owner, if any, on whose behalf the proposal is made;
2. as to the stockholder giving the notice, any beneficial owner on whose behalf the proposal is made, and any Stockholder Associated Person:
• the name and address of such person as they appear on the Corporation's books, if applicable, and the current name and address, if different;
• the class or series and number of shares of capital stock of the Corporation that are, directly or indirectly, owned of record or beneficially owned by such person;
• any option, warrant, convertible security, stock appreciation right, swap, hedge, derivative, or other agreement, arrangement, or understanding, whether or not such instrument or right shall be subject to settlement in shares of capital stock of the Corporation, the value of which is based on or derived in whole or in part from the value of any class or series of shares of capital stock of the Corporation, directly or indirectly owned or held by such person;
• any proxy, contract, arrangement, understanding, or relationship pursuant to which such person has a right to vote any shares of the Corporation;
• any agreement, arrangement, or understanding, including any repurchase or similar so-called "stock borrowing" agreement or arrangement, engaged in, directly or indirectly, by such person, the purpose or effect of which is to mitigate loss to, reduce the economic risk of stock ownership by, manage the risk of share price changes for, or increase or decrease the voting power of, such person with respect to any shares of stock of the Corporation;
• any rights to dividends on the shares of the Corporation owned beneficially by such person that are separated or separable from the underlying shares;
• any proportionate interest in shares of the Corporation or derivative instruments held, directly or indirectly, by a general or limited partnership, limited liability company, or similar entity in which such person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner; and
• any other information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal, or otherwise required pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder;
3. a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at the meeting, intends to appear in person or by proxy at the meeting to bring such business before the meeting, and intends to solicit proxies from holders of at least the percentage of voting power of the Corporation's outstanding capital stock required under applicable law to approve the proposal, if applicable; and
4. a representation as to whether such stockholder, beneficial owner, or any Stockholder Associated Person intends or is part of a group that intends:
• to deliver a proxy statement or form of proxy to holders of at least the percentage of the Corporation's outstanding capital stock required to carry the proposal; or
• otherwise to solicit proxies or votes from stockholders in support of such proposal.
A stockholder's notice to the Secretary with respect to any nomination for election of directors shall set forth, as to each person whom the stockholder proposes to nominate for election or reelection as a director:
1. the nominee's name, age, business address, and residence address;
2. the nominee's principal occupation or employment;
3. the class or series and number of shares of capital stock of the Corporation that are owned of record or beneficially owned by the nominee;
4. all information relating to the nominee that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the election of directors in a contested election, or that is otherwise required to be disclosed pursuant to Section 14 of the Exchange Act and the rules and regulations thereunder;
5. a written consent of the nominee to being named in the Corporation's proxy statement and any associated proxy card as a nominee and to serving as a director if elected;
6. a completed and signed questionnaire, representation, and agreement in the form required by the Corporation with respect to the background, qualifications, stock ownership, independence, and other matters relating to the nominee; and
7. such additional information as the Corporation may reasonably require to determine the eligibility of such nominee to serve as an independent director of the Corporation or to serve on any committee of the Board of Directors, or that could be material to a reasonable stockholder's understanding of the independence, or lack thereof, of such nominee.
In addition, the stockholder giving the notice, any beneficial owner on whose behalf the nomination is made, and any Stockholder Associated Person shall provide the information specified above in this Section 2.13(b) as if each such person were a proposing stockholder.
For purposes of these Bylaws, "Stockholder Associated Person" shall mean, with respect to any stockholder or beneficial owner, (i) any person acting in concert with such stockholder or beneficial owner, (ii) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder or beneficial owner, and (iii) any person controlling, controlled by, or under common control with such stockholder, beneficial owner, or any Stockholder Associated Person.
(c) Special Meeting Nominations. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation's notice of meeting only:
1. by or at the direction of the Board of Directors or a committee thereof; or
2. provided that the Board of Directors has determined that directors shall be elected at such special meeting, by any stockholder of the Corporation who:
• is a stockholder of record at the time of giving the notice provided for in this Section 2.13 and at the time of the special meeting;
• is entitled to vote at the meeting; and
• complies with the notice procedures set forth in this Section 2.13.
In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any stockholder entitled to vote in such election may nominate a person or persons, as specified in the Corporation's notice of meeting, if the stockholder's notice required by Section 2.13(b) shall be delivered to or mailed and received by the Secretary of the Corporation at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of (i) the ninetieth (90th) day prior to such special meeting or (ii) the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting.
(d) General Requirements. A stockholder providing notice of business proposed to be brought before a meeting or of any nomination for election to the Board of Directors shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment, recess, postponement, or rescheduling thereof. Such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for the meeting in the case of the update and supplement required to be made as of the record date, and not later than eight (8) business days prior to the date for the meeting or any adjournment, recess, postponement, or rescheduling thereof in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting.
In addition to the foregoing requirements, a stockholder seeking to nominate persons for election as directors shall comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to such nominations, including, without limitation, Rule 14a-19 under the Exchange Act, as applicable. If any stockholder provides notice pursuant to Rule 14a-19(b) and subsequently fails to comply with the requirements of Rule 14a-19, including the requirement to solicit the holders of shares representing at least sixty-seven percent (67%) of the voting power of the shares entitled to vote on the election of directors, then the Corporation shall disregard any proxies or votes solicited for such nominees. Upon request by the Corporation, if any stockholder provides notice pursuant to Rule 14a-19(b), such stockholder shall deliver to the Corporation, no later than five (5) business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19.
No business shall be conducted at any annual or special meeting of stockholders except business brought before the meeting in accordance with the procedures set forth in this Section 2.13. No person shall be eligible for election as a director unless nominated in accordance with the procedures set forth in this Section 2.13. Except as otherwise required by law, the Certificate of Incorporation, or these Bylaws, the chairperson of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare that such defective proposal or nomination shall be disregarded.
Nothing in this Section 2.13 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act, subject to applicable law and the requirements of such rule.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 General Powers
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as may be otherwise provided by the DGCL or the Certificate of Incorporation.
Section 3.2 Number, Election, and Term of Directors
Subject to the rights of the holders of any class or series of stock then outstanding and to the Certificate of Incorporation, the total number of directors constituting the whole Board of Directors shall be fixed from time to time exclusively by resolution adopted by the Board of Directors, but shall in no event be fewer than [Insert minimum] nor more than [Insert maximum].
The directors shall be [insert one: divided into three classes, as nearly equal in number as possible, designated Class I, Class II, and Class III, with the term of office of one class expiring each year; or elected annually]. The classification, election, and term of office of directors shall in all respects be as provided in the Certificate of Incorporation.
Each director shall hold office until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, disqualification, retirement, or removal from office.
Section 3.3 Newly Created Directorships and Vacancies
Subject to the rights of the holders of any class or series of stock then outstanding and to the Certificate of Incorporation, newly created directorships resulting from any increase in the authorized number of directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal, or other cause shall be filled solely by the affirmative vote of a majority of the directors then in office, even though less than a quorum, or by the sole remaining director.
Stockholders shall not be entitled to fill vacancies on the Board of Directors unless otherwise expressly provided in the Certificate of Incorporation.
Any director elected to fill a vacancy or newly created directorship shall hold office for the remainder of the full term of the class of directors in which the new directorship was created or the vacancy occurred, if the Board is classified, or until the next annual meeting of stockholders and until such director's successor is duly elected and qualified, if the Board is not classified, in each case subject to such director's earlier death, resignation, disqualification, retirement, or removal.
Section 3.4 Removal of Directors
Any director or the entire Board of Directors may be removed from office only in the manner provided in the Certificate of Incorporation.
If the Board of Directors is classified, then, subject to the rights of the holders of any class or series of stock then outstanding, directors may be removed only for cause and only by the affirmative vote of the holders of at least [__]% of the voting power of all then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, unless the Certificate of Incorporation provides otherwise.
If the Board of Directors is not classified, then, subject to the rights of the holders of any class or series of stock then outstanding, directors may be removed with or without cause by the affirmative vote of the holders of a majority of the voting power of all then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, unless the Certificate of Incorporation provides otherwise.
Section 3.5 Resignation
Any director may resign at any time by giving notice in writing or by electronic transmission to the Chairperson of the Board, the Chief Executive Officer, or the Secretary of the Corporation. Such resignation shall be effective upon delivery unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.6 Regular Meetings
Regular meetings of the Board of Directors may be held at such times and at such places, within or outside the State of Delaware, as may from time to time be determined by resolution of the Board of Directors, and, unless required by such resolution, notice thereof need not be given.
Without limiting the generality of the foregoing, a regular meeting of the Board of Directors may be held, without other notice than this Bylaw, immediately after, and at the same place as, the annual meeting of stockholders, for the purpose of organization, election of officers, and the transaction of other business.
Section 3.7 Special Meetings
Special meetings of the Board of Directors may be called by the Chairperson of the Board, the Chief Executive Officer, or by a majority of the directors then in office.
Notice of any special meeting of the Board of Directors shall be given to each director at least twenty-four (24) hours before the meeting if given personally, by telephone, or by electronic transmission, and at least three (3) days before the meeting if given by mail or nationally recognized overnight courier. Notice of a special meeting shall be deemed effectively given as provided in Section 7.3 of these Bylaws.
Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting unless otherwise required by law, the Certificate of Incorporation, or these Bylaws.
Section 3.8 Quorum and Voting
Unless otherwise required by law, the Certificate of Incorporation, or these Bylaws, a majority of the total number of directors then in office shall constitute a quorum for the transaction of business at any meeting of the Board of Directors.
Except as otherwise required by law, the Certificate of Incorporation, or these Bylaws, the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
A majority of the directors present, whether or not a quorum is present, may adjourn any meeting of the Board of Directors to another time and place. Notice of any adjourned meeting need not be given if the time and place are announced at the meeting at which the adjournment is taken.
Section 3.9 Action by Written Consent
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee in accordance with applicable law.
Section 3.10 Meetings by Telephone or Other Communications Equipment
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or members of any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of conference telephone, video conference, or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at the meeting.
Section 3.11 Committees of the Board
(a) Establishment. The Board of Directors may, by resolution adopted by a majority of the whole Board, designate one or more committees, each committee to consist of one or more directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.
(b) Authority. To the extent provided in the resolution or resolutions of the Board of Directors designating a committee, and subject to applicable law, each such committee 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 Corporation. No committee, however, shall have power or authority with respect to any matter as to which a committee is prohibited from acting under Section 141(c)(2) of the DGCL or any successor provision, including, to the extent then prohibited by the DGCL, adopting, amending, or repealing the Corporation's Bylaws, approving or adopting, or recommending to the stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval, or adopting an agreement of merger, consolidation, or sale of all or substantially all of the Corporation's assets.
(c) Committees. The Board of Directors may establish standing or special committees in such manner and with such powers as the Board shall determine from time to time.
Without limiting the foregoing, the Board may establish the following standing committees:
1. Audit Committee. The Audit Committee, if established, shall have such powers and duties as may be assigned by the Board of Directors or the committee charter approved by the Board. The composition of the Audit Committee shall satisfy all applicable independence and other eligibility requirements of the Nasdaq Stock Market LLC listing rules, Exchange Act Rule 10A-3, and any other applicable legal or regulatory requirements.
2. Compensation Committee. The Compensation Committee, if established, shall have such powers and duties as may be assigned by the Board of Directors or the committee charter approved by the Board. The composition of the Compensation Committee shall satisfy all applicable independence and other eligibility requirements of the Nasdaq Stock Market LLC listing rules and any other applicable legal or regulatory requirements.
3. Nominating and Corporate Governance Committee. The Nominating and Corporate Governance Committee, if established, shall have such powers and duties as may be assigned by the Board of Directors or the committee charter approved by the Board. The composition of the Nominating and Corporate Governance Committee shall satisfy such independence and other eligibility requirements as may be imposed by applicable law, stock exchange rules, or Board determination.
The Board of Directors may establish such other committees as it deems appropriate for the governance and management of the Corporation and may modify, combine, or discontinue committees at any time.
(d) Procedures. Each committee of the Board of Directors may fix its own rules of procedure to the extent not inconsistent with these Bylaws, the Certificate of Incorporation, applicable law, or the resolution of the Board of Directors designating such committee. Unless the Board of Directors otherwise provides, the rules governing meetings, notice, quorum, action without a meeting, and participation by means of communications equipment applicable to the Board of Directors shall apply to each committee and its members.
Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.
Section 3.12 Compensation of Directors
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, directors may receive such compensation for their services as directors and such reimbursement for expenses of attendance at meetings as may be fixed or determined from time to time by the Board of Directors or a committee thereof designated for such purpose. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Compensation for service as a member of a committee of the Board of Directors may be in addition to compensation for service as a director.
Section 3.13 Chairperson of the Board
The Board of Directors may elect a Chairperson of the Board from among its members. The Chairperson of the Board, if one is elected, shall preside at all meetings of the Board of Directors and all meetings of stockholders at which the Chairperson is present and shall have such other powers and duties as may from time to time be assigned by the Board of Directors.
The Board of Directors may determine, in its discretion, whether the Chairperson of the Board shall be an independent director and whether the offices of Chairperson of the Board and Chief Executive Officer may be held by the same person.
ARTICLE IV
OFFICERS
Section 4.1 Officers Generally
The officers of the Corporation shall include a Chief Executive Officer, a President, a Secretary, and a Chief Financial Officer or Treasurer, each of whom shall be elected by the Board of Directors. Any two or more offices may be held by the same person, except to the extent prohibited by applicable law.
The Board of Directors may also elect or appoint one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers, agents, and employees as the Board of Directors shall from time to time deem necessary or advisable. Such additional officers shall have such authority and perform such duties as may be prescribed by the Board of Directors or, to the extent consistent with these Bylaws and any resolution of the Board, by the Chief Executive Officer.
Section 4.2 Election and Term of Office
The officers of the Corporation shall be elected by the Board of Directors at such times as the Board deems appropriate. To the extent authorized by the Board of Directors, certain subordinate officers may be appointed by the Chief Executive Officer or by another officer designated by the Board.
Each officer shall hold office until such officer's successor shall have been duly elected or appointed and qualified, or until such officer's earlier death, resignation, disqualification, or removal.
Section 4.3 Removal
Any officer of the Corporation may be removed, with or without cause, by the Board of Directors at any time. Any subordinate officer appointed by another officer pursuant to authority delegated by the Board of Directors may also be removed, with or without cause, by the Board of Directors or by the officer who appointed such subordinate officer, unless the Board otherwise provides.
Removal of an officer shall be without prejudice to any contract rights, if any, of the person so removed.
Section 4.4 Resignation
Any officer may resign at any time by giving written notice or notice by electronic transmission to the Board of Directors, the Chief Executive Officer, or the Secretary of the Corporation. Such resignation shall be effective upon delivery unless the notice specifies a later effective date or an effective date determined upon the happening of an event or events. Unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
Section 4.5 Vacancies
A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled by the Board of Directors. Any vacancy in a subordinate office appointed by an officer pursuant to authority delegated by the Board may be filled by such officer unless the Board otherwise provides.
Section 4.6 Chief Executive Officer
The Chief Executive Officer shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and affairs of the Corporation and shall perform all duties and exercise all powers commonly incident to the office of chief executive officer of a corporation and such other duties and powers as the Board of Directors may from time to time assign.
Unless a Chairperson of the Board has been elected and is present, the Chief Executive Officer shall preside at all meetings of the stockholders.
The Chief Executive Officer shall have authority, in the name and on behalf of the Corporation, to execute and deliver deeds, mortgages, bonds, contracts, checks, or other instruments pertaining to the business of the Corporation, except in cases in which the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation, or shall be required by law to be otherwise signed or executed.
Section 4.7 President
The President shall perform such duties and have such powers as shall be assigned by the Board of Directors or the Chief Executive Officer. In the absence or disability of the Chief Executive Officer, the President shall perform the duties and exercise the powers of the Chief Executive Officer, subject to the control of the Board of Directors and except to the extent the Board otherwise provides.
If the same person holds the offices of Chief Executive Officer and President, such person shall exercise all powers and duties of both offices.
Section 4.8 Vice Presidents
Each Vice President shall have such powers and perform such duties as may from time to time be assigned by the Board of Directors, the Chief Executive Officer, or the President. Any Vice President may be designated by additional descriptive title, including Executive Vice President, Senior Vice President, or such other title as the Board of Directors may determine.
In the absence or disability of the President, the Vice Presidents in order of their rank as fixed by the Board of Directors, or if not ranked, a Vice President designated by the Board of Directors, shall perform the duties and exercise the powers of the President, subject to the control of the Board of Directors.
Section 4.9 Secretary
The Secretary shall:
1. keep or cause to be kept the minutes of all meetings and proceedings of the stockholders, the Board of Directors, and committees of the Board in books or records provided for that purpose;
2. give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors and of committees thereof as required by these Bylaws or by law;
3. maintain custody of the corporate records and of the corporate seal, if any, and affix the seal, or cause it to be affixed, to all documents requiring it;
4. maintain, or cause to be maintained, a stock ledger or other appropriate stock transfer records of the Corporation, provided that the Corporation may use the services of a transfer agent, registrar, or other service provider for that purpose; and
5. perform such other duties as may be assigned by the Board of Directors, the Chief Executive Officer, or the President.
Section 4.10 Chief Financial Officer / Treasurer
The Chief Financial Officer or Treasurer shall be the principal financial officer of the Corporation, unless the Board of Directors designates otherwise, and shall have custody and control of all funds and securities of the Corporation, receive and give receipts for moneys due and payable to the Corporation from any source whatsoever, and deposit all such moneys in the name of the Corporation in such banks, trust companies, or other depositories as shall be selected in accordance with these Bylaws or by the Board of Directors.
The Chief Financial Officer or Treasurer shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall render to the Board of Directors and the Chief Executive Officer, whenever requested, an account of the financial condition of the Corporation.
The Chief Financial Officer or Treasurer shall perform all duties incident to the office and such other duties as may be assigned by the Board of Directors, the Chief Executive Officer, or the President.