Delaware		001-39269		47-1787157
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Title of each class	Trading Symbol	Name of exchange on which registered
Common Stock, par value $0.001 per share	ORIC	The NASDAQ Capital Market

Item 5.03	Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Item 7.01	Regulation FD Disclosure.

Item 9.01	Financial Statements and Exhibits.

(d)	Exhibits.

Exhibit No.		Description
3.1		Amended and Restated Certificate of Incorporation of the Registrant.
3.2		Amended and Restated Bylaws of the Registrant.
99.1		Press Release, dated April 28, 2020.

ORIC PHARMACEUTICALS, INC.
By:		/s/ Jacob Chacko, M.D.
		Jacob Chacko, M.D.
		President and Chief Executive Officer

By:	/s/ Jacob Chacko, M.D.
	Jacob Chacko, M.D.
	President and Chief Executive Officer

AR T ICLE I—CORPORATE OF F ICES		1
	1.1   REGI S TER E D OF F ICE	1
	1.2   OTHER O FF ICES	1
ARTICLE II—MEETINGS OF STOCKHOLDERS		1
	2 . 1   P LACE O F MEETINGS	1
	2 . 2   A N NU A L MEE T ING	1
	2.3   S PECIAL MEETING	1
	2 . 4   A D VA N CE NOTICE PR O CE D URES	2
	2 . 5   N O T ICE O F STOCKH O L D ER S ’ M E ETI N GS	7
	2.6   QUORUM	8
	2.7   ADJOURNED M E ETING; NOT I CE	8
	2 . 8   CO N DUCT O F BUSI N E S S	8
	2.9   VOTING	9
	2 . 10 STOC K HOLDER A CTI O N BY WRITTEN C O NSENT WIT H OUT A M E ETING	9
	2.11 RECORD DATES	9
	2.12 PROXIES	10
	2.13 LI S T OF S T OCKHO L DERS ENTI T L E D TO VOTE	10
	2.14 INS P EC T O RS OF E LEC T ION	11
ARTICLE III—DIRECTORS		11
	3.1   P OWERS	11
	3.2   NU M BER OF DIR E CTORS	11
	3 . 3   ELECTI O N, Q U ALIFICATION A N D TERM OF OF F ICE OF DIRECTORS	12
	3 . 4   RESIG N ATION AND V A CANCIES	12
	3 . 5   P LACE O F MEETING S ; MEETI N GS BY TELEP H ONE	13
	3 . 6   REGULAR MEETINGS	13
	3.7   S P E CIAL ME E TING S ; N O T ICE	13
	3 . 8   Q U ORU M ; VOTING	14
	3.9   BOARD AC T ION BY WRI T TEN CON S ENT WITHOUT A M E ETING	14
	3 . 10 FEES AND CO M P ENS A TI O N O F DIRECTORS	14
	3.11 REMOVAL OF DIRECTORS	14
AR T ICLE IV—COMMITT E ES		15
	4 . 1   CO M MITTEES O F DIRECTORS	15
	4.2   COMMIT T EE MINUT E S	15
	4 . 3   MEETI N GS AND ACTION OF C O MMITTEES	15
	4.4   S UBCOMMITTEES	16
ARTICLE V—OFFICERS		16
	5.1     OFFICERS	16
	5 . 2    A P P OI N T M E N T OF O F FICERS	16
	5 . 3     S U BORDI N ATE OF F ICERS	16

	5 . 4   REMO V AL A N D RESI G NATION OF O FFICERS	16
	5.5   VACANCIES IN OFFICES	17
	5 . 6   REPRESENTATI O N OF SECUR I TIES OF O T H E R E N TI T IES	17
	5 . 7   A U T H ORITY A ND DUTIES O F OF F ICERS	17
ARTICLE VI—STOCK		17
	6.1   S TOCK CERTI F ICATE S ; P A RT L Y PAID S H ARES	17
	6 . 2   S P E CI A L DESIG N ATION ON CERTIFIC A T ES	18
	6.3   LO S T CERTIFICATES	18
	6.4   DIVIDENDS	18
	6 . 5   TRAN S FER OF S T O CK	19
	6.6   S TOCK TRANS F ER AGRE E MENTS	19
	6 . 7   REGISTERED STOC K HOLDERS	19
ARTICLE VII—MANNER OF GIVING NOTICE AND WAIVER		19
	7 . 1   N O T ICE O F STOCKH O L D ER S ’ M E ETI N GS	19
	7 . 2   N O T ICE TO STOCK H OLDERS S HARI N G AN AD D RE S S	19
	7 . 3   N O T ICE TO PERSON WITH WHOM C O MM U NICATION IS UNLAWFUL	20
	7 . 4   W AIVER O F N OTICE	20
ARTICLE VIII—INDEMNIFICATION		20
	8 . 1   IN D E M NIFICATION O F D IRECTORS A N D OF F ICERS IN T H IRD PARTY PROCEEDINGS	20
	8 . 2   IN D E M NIFICATION O F D IRECTORS A N D OF F ICERS IN ACTIONS BY OR IN T H E RIGHT O F T H E COM P ANY	21
	8 . 3   S U CCE S SF U L DEFEN S E	21
	8 . 4   IN D E M NIFICATION O F O T H E RS	21
	8 . 5   A D VA N CED P A YMENT O F E X PENSES	21
	8 . 6   LIMITATI O N ON INDEMNIFICATION	22
	8 . 7   DETER M INATION; CLAIM	22
	8 . 8   N O N-EXCL U SIVITY OF RIG H TS	23
	8 . 9   IN S URA N CE	23
	8.10 SURVIVAL	23
	8 . 11 EFFECT OF REP E AL O R M ODI F ICATI O N	23
	8.12 CER T AIN D E FINIT I ONS	23
ARTICLE IX—GENERAL MATT E RS		24
	9.1   EXECUT I ON OF CORPORATE CONTRACTS AND I N STRUMENTS	24
	9.2   F ISCAL YEAR	24
	9.3   S EAL	24
	9 . 4   CO N STRUCTION; D E F INITI O NS	24
	9.5   F ORUM S EL E CTION	25
ARTICLE X—AMENDMENTS		25

and of their respec t ive a f fil i ates or associates or others acting in conc e rt w i th t he m ;

 

(B)    for each class or series, the numb e r of shares of stock of the Company that are, directly or indirectly, held of record or are beneficially owned by such stockholder, such beneficial o w ner or their respective a f fil i ates or associates or oth e rs a c ting in conc e rt w i th the m ;

 

(C)    a description of any agreeme n t, arrangement or understanding between such stockholder, such beneficial ow n e r or their r e sp e c tive affil i a tes or a s s oci a tes or others acting in concert with them, and any other person or persons (including, i n e ach c a s e , th e ir n a m e s) in connection with the proposal of s u ch nomination or other business;

 

(D)    a description of a n y agreement, arrangement or understanding (including, regardless of the form of settlement, any derivative, long or short positions, profit interests, forward s , futures, swaps, opti o ns, warrants, convertible securities, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) that has been entered into by or on behalf of s u ch stockholder, su c h beneficial owner or the i r r e sp e c t i ve affi l i a tes or assoc i at e s or others acting in concert with them, w it h resp e c t to the Comp a ny’s s e cur i ti e s (any of the foregoing, a “ Der i vative I n str u m e n t ”), or any other agreement, arrangement or understanding that has been m a de the ef f ect or intent of which is to create or

mitigate loss to, manage risk or benefit of share price changes for or increase or decrease the voting power of such stockhol d er, such beneficial owner or the i r r e sp e c t i ve affi l i a tes or assoc i at e s or others acting in concert with them, wi t h resp e c t to the Comp a ny’s s e cur i ti e s;

 

(E)   any rights to dividends on the Company’s securities owned beneficially by such sto c kholder, such beneficial owner or their respective affiliates or associates or o t hers acting in conce r t with th e m, th a t a re s e p a rated or separable from the underlying security;

 

(F)    any proportionate interest in the Company’s securiti e s or Derivative Instruments held, directly or indirectly, by a general or limited part n e rship in which such stockholder, s u ch beneficial owner or their respect i ve affiliates or associates or others acting in concert with them, is a general partner or, dir e ctly or indirectly, ben e fic i a l ly owns a n in t e r e st i n a g e neral partner of such general or l i mited partnership;

 

(G)    any performance-related fees (ot h er than an asset-based fee) that such stockholder, such beneficial owner or their respec t ive a f fil i at e s or a sso c ia t es or oth er s a c ting in c onc e rt w i th t he m , is en t it l ed to based on any increase or decrease in the value of the Company’s securities or Derivative Instruments, including, without limitation, any such interests held by members of the immediate family of such persons sharing the same household;

 

(H)    any significant equity interests or any Derivative Instruments in any principal competitor of the Compa n y that are held by such stockh o lder, such beneficial owner or their respective a ffil i a t es or asso c i a tes or oth e rs a c ting in con c ert w i th the m ;

 

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(I)    any direct or indirect interest of such stockholder, such benef i cial owner or their respecti v e a f filiates or associates or oth e rs a c ting in con c ert with the m , in any contract with the Comp a ny, any affiliate of the Company or any principal competi t or of the Company (in each case, including any employment agreement, collecti v e bargaining agreement or consulting agreement);

 

(J)    a representation and undertaking that the stoc k holder is a holder of record of stock of the Company as of the date of submission of the stockholder’s notice and inten d s to appear in person or by proxy at the meeting to bring such nomination o r other business before the m e et i ng;

 

(K)    a representation and undertaking that such stockholder or any such beneficial owner intends, or is part of a group that intends, to (x) deliver a proxy statement or form of proxy to h o lders of at least the percentage of the voting power of the Comp a ny’s t h en- o u tstanding stock required to app r ove or adopt the proposal or to elect each s u ch nominee; or ( y) oth e rwise solic i t proxies fr o m stockh o lders in support of such proposal or nomination;

 

(L)   any other information relating to such stockholder, such beneficial owne r , or their respective affiliates or associates or others acting in concert with them, or director nominee or proposed business that, in each case, would be requir e d to be discl o sed in a proxy statement or other filing required to be made in connection with the solicitation of proxies in support of such nominee ( in a contested election of directors) or proposal pursuant to Section 14 of the 1934 Act; and

 

(M)    such other information relating to any proposed item of business as the Company may reasonably require to determine whether such proposed item of busine s s is a proper matter for stockholder action.

 

(iv)   In addition to the requirements of this Section 2.4, to be timely, a stockholder’s n otice must further be u p dated and supplemented, if necessary, so that the information provided or required to be provided in such notice is true and correct as o f the record date(s) for determining the stockholders entitled to notice of, and to vote at, the meeting and as of the date that is 10 business days pr i or to the meeting or any adjournment, rescheduling or postponement thereof. Such u p date and supplement, if applicable, must be received by the secretary a t t he princ i pal executive offices of the Company not later t h an five business days after the record d a te(s) for the meeting (in t he c a se of any update and supplement required to be made as of the record date ( s )), and not later than eight business days p r ior to the date for the meeting or any adjournment, rescheduling or p o stponement thereof (in the case of the upd a te and supplement required to be made as of 10 b u siness days prior to the meeting o r any adjournment, rescheduling or postponement thereof).

 

(b)     Special Meetings of Stockholders . Except to the extent required by the DGCL, and subject to Section 2.3(a), special meetings of stockholders may be called only in accordance with the C o mpany’s certificate of incorporation and these bylaws. Only such business will be conducted at a special meeting of stockholders as has been brought before the special meeting pursuant to the Company’s notice of meetin g . If the election of directors is included as business to be b r ought before a special meeting in the Comp a ny’s notice of meeting, then nominations o f persons for election to the Board of Directors at such special m e eting may be made by any sto c kholder who (i) is a stockholder of record at the time of giving of t h e notice contemplated by this Section 2 . 4(b); (ii) is a stockholder of

 

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record on the reco r d date for the determination of stockholde r s entitled to notice of the special meeting; (iii) is a stockhol d er of record on the record date for the dete r mination of stockholders entitled to vote at the special meeting; ( iv) is a stockhol d e r of record at the time of t he special meeting; and

(v) complies with the procedures set f or t h in this Section 2.4(b). For nominations to be properly brought by a stockholder bef o re a spe c ial m ee t ing p u r s uant to this Section 2.4(b), the sto c kholder’s notice must be received by the secretary at t h e princi p a l executive offices of the Company no earlier

than 8:00 a.m., local time, on the 120th day prior to the day of the special meeting and no later than 5:00 p.m., local time, o n the 10th day following the day on which public announcement of the date of the special meeting was first made. In n o event will any adjournment, reschedu l ing or postponement

of a special meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice. A

stockholder’s notice to the Secretary must comply with the applicable notice requirem e nts of Section 2.4(a)(iii).

 

(c)   Other Requirements.

 

(i)   To be eligible to be a nominee by any stockholder for e l ection as a director of the Company, the proposed nominee must provide to the secretary, in accordance with the applicable time periods prescribed for delivery of no t ice under Section 2.4(a ) (ii) or Section 2.4(b):

 

(1)    a signed and completed written questionnaire (in the f o rm provided by the secretary at the written request of the n o minating stockholder, which form will be provided by the secretary within 10 days of receiving such request) containing information regarding such n o minee’s background and qualifications and such other info r mation as may reasonably be required by the Company to determine the e lig i bil i ty of such n o minee to serve as a director of the Company or to serve as an independent director of the Compan y ;

 

(2)    a written representation and u nd e rtaking that, unless previously disclosed to the Company, such nominee is not, and will not become, a party to a n y voting a g reement, arrangemen t , commitment, assurance or understanding with a n y person or entity as to how such no m in e e, if e l ec t ed as a d i rector, will vote on any issue;

 

(3)    a written representation and u nd e rtaking that, unless previously disclosed to the Company, such nominee is not, and will not become, a party to a n y Third-Party Compensation Arrangement;

 

(4)    a written representation and u ndertaking that, if elected as a director, such nominee w o uld be in compliance, and will continue to comply, with the Company’s c o rporate governance guidelines as disclosed on the Company’s website, as amended f rom t ime t o t i m e ; a nd

 

(5)    a written representation and u ndert a king t hat such nomin e e , if e l e c ted, i nt e nds to serve a full term on the Board of

 

 

to the secretary the information that is required to be set forth in a stockholde r ’s notice of nomination that pertai n s to such nominee.

 

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( i ii)   No p e rson will be e l igib l e to be nominated by a stock h older for election as a director of the Company unless nominated in accordance with the procedures set forth in this Section 2.4. No business proposed by a stockholder will be conducted at a sto c kholder meeting except in accordance with this Section 2.4.

 

(iv)   The chairperson of the applicable meeting of stockholders will, if t h e facts warr a nt, determine and d e clare to the meeting that a nomination was not made in a ccord a nce wi t h the pro c edur e s prescr i bed by these bylaws or that business was not properly brou g ht before the meeting. If the chai r person of the meeting should so d e termine, then the chairperson of the mee t ing will so declare to the meeting and t he defective nomination will be disrega r ded or such business will not be transacted, as the case may be.

 

(v)    Notwithstanding anything to the con t rary in this Section 2.4, unless otherwise required by l a w, if the stockholder (or a qualified represe n tative of the stockholder) does not appear in person at the meeting to pre s ent a nomination or other proposed business, s u ch nomination will be disregarded or such proposed business will not be transacted, as the case may b e , notwithstanding that proxies in respect of s u ch nomination or business may have been received by the Company and counted for purposes of determining a quorum. For purposes of this Section 2.4, to be consid e red a q u alified representative of the s t ockholder, a person must be a du l y authorized officer, manager or partner of such stockholder or m u st be authorized by

a writing executed by such stockholder or an electronic trans m ission delivered by such stockholder to act for such stockholder as proxy at the meeting, and such person must produce such writing or electronic t r ansmission, or a reliable reproduction of the writing or electronic transmission, at the

meeting.

 

(vi)   Without limiting this Section 2 . 4, a stockholder must also comply with all applicable requirem e nts of the 1934 Act with respect to the matters set forth in this Section 2.4, it being understood that (1) any references in these bylaws to the 1934 A ct are not intended to, and will not, limit any requirements app l icable to n o minations or proposals as to any other business to be considered pursuant to t his Section 2.4; and

(2) compliance with clause (4) of Section 2.4(a)(i) and with Section 2.4(b) are the e x clusive means for a stockh o lder to make nominations or submit other business (other than as p r ovided in Section 2.4(c)(vii)).

 

(vii)   Notwithstanding anything to the c ontrary in this Section 2.4, the notice requirements set forth in these bylaws with r e spect t o the proposal of any business pursuant to this Section 2.4 will be deemed to be satisfied by a sto c kholder if (1) such stockhol d er has submitted a proposal to the Company in compliance with Rule 14a-8 under the 1934 Act; and ( 2) such stockholder’s propo s al has been included in a pr o xy sta t em e nt that h a s been prepared by the Company to solicit proxies for the meeting of stockholders. Subject to Rule 14a-8 and other applicable ru l es and regulations under the 1934 Act, nothing in these bylaws will be construed to permit any stockholder, or gi v e any sto c kholder the right, to inclu d e or have disseminated or described in the Company’s proxy statement any nomina t ion o f a director or any other business proposal.

 

2.5     N OTICE OF STOCK H OLDERS’ M E ETINGS

 

Whenever stockholders are required or perm i tted to take any action at a meeting, a no t ice of the meeting shall be given which s h a ll sta t e the pl a c e , if any, date and hour of the meeting, t h e means of remote comm u nications, if any, by which stockholders and proxy holders may b e deemed to be

present in person and vote at such meeting, the record date for determining t h e stockholders entit l ed to vote at the

 

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meeting, if such date is diff e rent from the record date for d e termining stockholde r s entitled to notice of the meeting, and, in the c a se of a spec i al meeting, the purpose or purposes for which the meeting is called. Except as oth e r w i s e provid e d in the D GCL, the ce rtific a te of incorporation or these b y laws, the notice of any m eeting of stockholders shall be g i ven not less than 10 nor more than 60 days before t h e date of the m e et i ng to e a ch stockholder entitled to vote at such meeting as of the record date for det e rmining the stockholders e n titled to notice of the m eeting.

 

2.6     Q UORUM

 

The holders of a majority of the voting power of the capital s t ock of the Company issued and ou tstanding and entit l ed to vo t e, present in person or represe n ted by proxy, shall constitute a quo r um for the transaction of business at all meetings of the stockholders. Where a s e parate vote by a class or s e ries or c l ass e s or s e ri e s is required, a majority of the voting power of the outstanding shares of such class or series or cl a sses or s e rie s , pre s ent in person or represented by proxy, shall consti t ute a quorum entitled to take action with r e spect to t h at vote on that matter, except as otherwise provided by law, the c e rt i fi c ate of in c o r p o r ation or these bylaws.

 

If, howe v er, such quorum is not present or represented at any meeting of the stockhold e rs, then either (a) the chairperson of the meeti n g, or (b) the stockholders entitled to vote at the meeting, present in p e rson or represented by proxy, shall have power to adjourn the meeti n g f rom t ime t o t i m e , without notice other than announcement at the meeting, until a quorum is present or represent e d . At such adjourned meeting at which a quorum is present or represented, a n y business may be transacted that might have been tr a ns a cted a t the original m e eting.

 

2.7     A DJO U RNED M E ETING; N OTICE

 

When a meeting is adjourned to another ti m e or place, unless these bylaws otherwise r e quire, notice need not be given of the adjourned meeting if the time, plac e , if any, thereof, and the mea n s of remote communications, if any, by which stockholders and proxy holders may b e d e emed to be pr e s e nt in person and vote at such adjourned meeting are annou n ced at the meeting at which the adjournment is taken. At the adj o u r ned m eeting, the Company may transact any business which might have been tr a ns a c t ed a t the orig i nal m e et i ng. If t he adjourn m ent is for more th a n 30 day s , a noti c e of t he adjourned meeting shall be given to each stockholder of record e n titled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vo t e is fixed for the a d journed meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting in accordance with Section 213(a) of the DGCL and Section 2.11 of these bylaws, and shall give noti c e of the adjourned meeting to each stockholder of record en t it l ed to vo t e at such a djourn e d m e e t ing a s of t h e record date fixed for notice of such adjourned meeting.

 

2.8    C O NDUCT OF BUSI N E S S

 

The chairperson of any meeting of stockholders shall determine t h e order of business and the procedure at the m eeting, includi n g such r e gulation of the manner of voting and the conduct of bu s iness and discussion as seem to the chairperson in order. The chairperson of any meeting of stockholders shall be designated by t h e Board of Dire c tors; in t he abs e n c e of such designation, the chairperson of the Board of Directors, if any, or the chief executive officer (in the absence of the chairperson of the Board of Directors) or the president (in the absence of the chairperson of t h e Board of Directors and the chief executive officer), or in their absence any oth e r e xecu t ive offi c e r of t he Company, sha l l s e rve as

 

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chairperson of the stockholder meeting. The chairperson of any meeting of stockholders shall have t h e power to adjourn the mee t ing to another place, if any, date or time, whether or not a quorum is present.

 

2.9    VOTING

 

The stockholders entitled to vote at any meeting of stockholders shall be determined in ac c ordance with the provisions of Section 2.11 of these b y laws, subject to Section 217 (r e lating to voting rights of fiduciaries, pled g o r s and joint owners of stock) and Section 218 ( relating to voting trusts and other voting agreements) of the DGCL.

 

Except as may be otherwise prov i ded in the certificate of incorporation or the s e bylaws, each stockholder shall be e n titled to one vote for each share of capital stock held by such stockholder.

 

Except as otherwise provided by law, the certif i cate of incorporation, these bylaws or t h e rules of the stock exchange on which the Company’s s e curi t ies are l i s t ed, in a l l ma t ters other th a n the e le c t i on of directors, the affirmative vote of a majority of the voti n g pow e r of the sh a res pr e sent in person or represented by proxy at the meet i ng and entitled to vote on the su b j ect matter shall be the act of the stockholders. Except as otherwise r e quired by l a w, t he c e rtif i ca t e of i ncorpora t ion or these bylaws, directors shall be elected by a plurality of the voting power of the shares present in person or represe n ted by proxy at the meeting and entitled to vote on the election of directors. Where a sepa r ate vote by a class or ser i es or c l ass e s or s e ries is requir e d, in all m a t t ers oth e r t han the e l ection of di r ectors, the aff i rmative vote of the majority of the voting power of the sh a res of such c l a ss or s e ri e s or classes or series present in person or r e presented by proxy at the meeting and entitl e d to vote on the subject matter shall be the a c t of such c l ass or s e r i es or c l ass e s or s e ri e s , e xcept a s otherwise provided by law, the cert i ficate of incorporation, the s e bylaws or the rules of the s tock exchange on which the s e curi t ies of the Co m pany are l i s t ed.

 

2.10     S T O CKHOLDER ACTI O N BY WRITTEN C O NSENT WITHO U T A MEETING

 

Subject to the rights of holders of preferred stock of the Company, any action requir e d or pe r mitted to be taken by the stockh ol ders of the Company must b e effected at a duly called annual or special meeting of stockholders of the Company a nd may not be effected by any consent in writing by such stockholders.

 

2.11    RECORD DATES

 

In order that the Company may determine t h e stockholders entitled to notice of any meeting of stockho l ders or any adjo u r nment t hereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record d a te is adopted by the Board of Directors and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Boa r d of Directors so f ixes a date, such date shall also be the record date for determining the stockholders entit l ed to vote at such meeting unless the Boa r d of Directors determines, at the ti m e it fix e s su c h r e cord dat e , th a t a l a t e r d a te on or be f o r e the date of the meeting shall be the date for making such determination.

 

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If no record date is fixed by the Board of D i rectors, the r ecord date for determining stockholders entitled to n o tice o f and to vote at a meeting of stockholders shall be at the close of busine s s o n the day ne x t preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.

 

A determinati o n of stockholders of record entitled to notice of or to vote at a me e ting of stockholders shall apply to any adj o urnment of the meeting; provided, howeve r , that the Board of Directors may fix a new record date for d e termination of stockholders en t itled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the s ame or an e a rli e r d a te as that fixed for dete r mination of stockholders ent i tled to vote in accordance with the provis i ons of Section 213 of the DGCL and this Section 2.11 at the adjourned meeting.

 

In order that the Company may determine t h e stockholders entitled to rec e i v e payment of any dividend or other distribution or a llo t m e nt of any rights or the stock h olders entitled to exerc i se any rights in respect of any change, conversion or exc h ange of st o c k, 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 f i xing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on whi c h the Board of Directors adopts the reso l ution relating t h ereto.

 

2.12    PROXIES

 

Each stockholder entitled to vote at a me e ting of stockholders may authorize another person or persons to act for such stockho l der by proxy authorized by a document or by a t r ansmission permitted by law f il e d in a c cord a nce with the proc e dure established for the meet i n g, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy p r o v ides for a longer period. The revocability o f a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL.

 

2 . 13    LI S T OF S TOCKHO L D E RS ENTI T LED TO VOTE

 

The Company shall pre p are, at l e ast 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting; provided, however, if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list sha l l reflect the stockholders entitled to vote as of the tenth day be f o r e the meeting date, arranged in alp h a b etical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. The Company shall not be required to include e l ec t ronic m a il

addresses or other electronic contact infor m ation on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least 10 days prior to the m e eting: (a) on a reasonably accessible elect r o nic network, provided th a t the inform a t ion

required to gain access to such list is provided with the notice of the meet i ng, or (b) during ordinary business hours, at the Company’s principal place of busin e ss. In the ev e nt that t he Co m pany det e rmin e s to m a ke t h e list av a il a ble on an e l e c tron i c n e twork, the Company may take r e asonab l e s t eps t o

ensure that such information is available only to stockholders o f the Company. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be prod u ced and kept at the time a nd place of the meeting during the whole time thereo f , and may b e exa m ined by a ny

stockholder who is present. If the m e eting is to be held solely by

 

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means of remote communicat i on, then such list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic n e tw o r k, and the information requ i r e d to a c c e ss su c h list s h a ll be provided with the notice of the m e et i ng.

 

2 . 14    INS P ECTORS OF E L EC T ION

 

Before any meeting of stockholders, the C o mpany shall appoint an inspector or ins p ectors of election to a c t at the meeting or i t s ad j ournmen t . The

Company may designate one or more per s ons as a l t e rna t e inspe c tors to rep l ace a ny i nsp e c tor who f a ils t o a c t.

 

Such inspe c tors sha l l:

 

(a)   ascertain the number of shares outstanding and the voting power of each;

 

(b)    d e t e rmine t h e sha r es r e present e d a t the meeting and the validity of proxies and ballots; (c)   count all votes and ball o t s;

(d)    determine and retain for a reason a ble peri o d a record of the disposition of any challenges made to any determination by the ins p e c tor s ; and

 

(e)   certify their determination of the number of shares represented at the meet i ng, and their count of all votes and ballots.

 

The inspectors of election shall perform the i r duties impartially, in good faith, to the best of their ability and as expeditiously as is pra c t i ca l . If there a re mul t iple i n sp e c tors of e l e c tion, t he d e c i s i on, act or c e rtif i c a te of a m a jor i ty is ef f ec t ive in a l l r e sp e c t s as t he d ec i s i on, a c t or c e rt i fic a te of a l l . Any report or certifi c ate made by the inspectors of election is prima facie e viden c e of the f a c t s s t a t ed t her e in.

 

 

ARTICLE III—DIRECTORS

 

3.1    POWERS

 

The business and affairs of the Company sha l l be managed by or under t h e direction of t h e B o ard of Directors, except as may be otherwise provided in the DGCL or the c e rtificate of incorporation.

 

3 . 2    NUMBER OF DIR E CTORS

 

The Board of Directors shall consist of one or more members, each of whom shall be a na t ural person. Unless the c e r t ifi c ate of incorporation fixes the number of d i rectors, the number of direc t ors sha l l be det e rmin e d from t ime to t i me by resolution of a majority of the Whole Board. No reduction of the aut h o r ized number of directors shall have the effect of removing any d i rector before that director’s term of of f ice expire s .

 

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3.3    ELECTION, Q UALIFICATION A N D TERM OF O F FICE OF D IRECTORS

 

Except as provided in Section 3.4 of these bylaws, each director, including a director elected to fill a vacancy, shall hold o f fice until the expiration of the t e rm for whi c h ele c t e d and until such director’s successor is elected and qualified or until such dir e ctor’s ear l ier de a th, resignation or removal. Directors need not be stockholders unless so required by the c e rtificate of incorporation or t h ese bylaws. The certificate of incorporation or these bylaws may prescribe other qualifications for directors.

 

If so provided in the certificate of incorporation, the dir e cto r s of the Company shall be divided into thr e e cl a sses.

 

3.4    RESIG N ATION AND V ACANCIES

 

Any director may resign at any time upon notice given in writing or by electron i c transmission to the Company. A resignation is eff e ctive wh e n the resignation is delivered unless the r e signation specifies a later effective date or an effective date determined upon the h appening of an event or events. A resignation which is conditioned upon the director failing to receive a specified vote f or reelection as a director m ay provide that it is irrevocable. Unless otherwise provided in the certificate of incorporation or the s e bylaws, when one or more directors resign f rom the Board of D i r ec t or s , eff e ctive at a future da t e , a m a jori t y of the dir e ctors then in office, including those who have so res i gned, shall have power to fill such vacancy or vacancies, the vote thereon to t a ke eff e ct when su c h resignation or resignations sha l l beco m e eff e ct i ve.

 

Unless otherwise provided in the certifica t e of incorporation or these bylaws or per m i t ted in the sp e c i fic c a se by resolu t ion o f the Board of Directors, and subject to the rights of holders of Preferred Stock, vacancies and newly creat e d directorships resulting from any incr e a se in the au t horiz e d n u mber of directors elected by a ll of the stockholders having the right to vote as a single class may be filled by a majority o f the dir e ctors then in offic e , although less than a quorum, or by a sole r e maining director, and not by stockholders. If the directo r s are divided into classes, a person so chosen to fill

a vacancy or newly created directorship s h all hold office until the next e le c t i on of the c l ass for whi c h such dir e ctor shall h a ve been chosen and until his or her successor shall have b e en duly elected and qualified.

 

If at any time, by reason of dea t h or resignation or other cause, the Company s hould have no directors in of f ice, then any officer or any stockholder or an executor, admin i strator, trustee or guardian of a stockholder, or other fiduci a ry entrusted with like respon s i bil i ty for the p e rson or estate of a stockholder, m a y call a special meeting of stockho l ders in accordance with the p r o v isions of the certificate of in c orporation or these bylaws, or may apply to the Court of Chancery for a decree summari l y ordering an election as provided in Section 211 of the DGCL.

 

If, a t the t i me of f i ll i ng any vacancy or any newly created d i r e c t orsh i p, the dir e ctors then in office c ons t itu t e less t han a m ajority of t h e Whole Board (as constituted imm e diately prior to any such increase), the Court of Chancery may, upon appl i cation of any stockholder o r stockholders holding at least 10% of the voting stock at the t i me outstanding having the right to vote for s u ch directors, summarily order an elect i on to be held to fill any such vacancies or newly created direc t orships, or to replace the directors ch o sen by t h e dir e ctors t hen in office a s afor e s a id, whi c h election shall be governed by the provisions of Section 211 of the DGCL as far as applicable.

 

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3.5     P L A CE OF MEETIN G S ; M E ETI N GS BY TELE P HO N E

 

The Board of Directors may hold meeting s , both regular and special, either within or outside the State of Delaware.

 

Unl e ss otherwise restr i c t ed by the c e rt i fi c ate of inco r po r at i on or these byl a w s, m e mbe r s of t he Board of Directors may participate in a meeting of the Board of Directors by means of conference telephone or oth e r communications equipment by mea n s of which all persons particip a ting in the meeting can hear each oth e r, and such participation in a meeting shall cons t itu t e p r esence i n person at the meeting.

 

3.6    REGULAR MEETIN G S

 

Regular meetings of the Board of Directors may be held without noti c e at such time and at such p l ace as shall f rom time to time be determined by the Board of Directors.

 

3 . 7    S P ECIAL MEE T ING S ; NOTICE

 

Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the chairperson of the Boa r d of Directors, the chi e f e xecu t ive offi c e r, t he presiden t , the secr e t a ry or a ma j ority of t he Whole Bo a rd.

 

Not i ce of the ti m e and pla c e of spe c ial m ee t ings sha l l be:

 

(a)   delivered personally by hand, by courier or by telephone; (b)    sent by United States f i rs t -c l ass m a il, po s tage prepaid;

(c)   sent by facsimile;

 

(d)    sent by e l ectronic mail; or

 

(e)   otherwise given by electronic transmission (as defined in Section 232 of the DGCL),

 

directed to each director at that director’s address, telephone number, facsimile number, electronic mail ad d r ess or other con t act for n otice by electronic tr a nsmi s sion, as the c a se may be, as shown o n the Company’s records.

 

If the notice is (i) delivered p e rsonally by ha n d, by courier or by telephone, ( ii) sent by facsimile, ( i ii) sent by electronic ma i l or (iv) otherwise given by electronic transmission, it shall be delivered, s e nt or oth e rw i s e di r ec t ed to e a c h d i rec t or, as a ppli c ab l e , at l east 2 4 hours b e fore the time of the h o lding of the meeting. If the notice is sent by Unit e d Sta t es m a i l , it shall be d e pos i ted in the Un i t e d Sta t es m a il a t le a s t f our days before the time of the h o lding of the meeting. Any oral notice may be communicated to the director. The noti c e need not specify the place of the meet i ng (if the meeting is to be held at the Company’s principal executive office) nor the purpose of the meeting, unless required by statute.

 

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3.8     Q UORU M ; V O TING

 

At all meetings of the Board of Directors, a majority of the Whole Board shall constitute a quorum for the transaction of busi n ess. If a quorum is n o t present at any meeting of the Board of Directors, then the directors present the r eat may adjourn the m e et i ng from t i me to time, without notice other than announcement at the meeting, until a quo r um is p r esent. A meeting at which a quorum is initially present may continue to t ransact business n o twithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that m ee t ing.

 

The affirmative vote of a majority of the d i rectors present at any meet i ng at which a quorum is present shall be the act of the Board of Directors, except as may be otherwise specifically provided by s t atu t e, the c e r t ifi c ate of i n corporation or these bylaws.

 

If the certificate of incorporation provides that o n e or more directors shall have more or less than one vote per director on a ny matter, except as may othe r w ise be expressly provid e d herein or therein and denoted with the phrase “notwithstanding the final paragraph of Sect i on 3.8 of the bylaws” or language to similar effect, every reference in these bylaws to a majority or other proportion of the directors shall refer to a majority or other proportion

of the votes of the directors.

 

3.9    B O ARD ACTION BY WRI T T E N CON S E N T WI T HO U T A MEETING

 

Unl e ss otherwise restr i c t ed by the c e rt i fi c ate of inco r po r at i on or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any c o mmittee thereof, may be taken w i thout a meeting if all members of the Board of Directors or co m mi t te e , as t he case m a y be, consent thereto in writing or by electronic transmission. Any person (whether or not then a director) may provide, whether through instruction to an agent or otherwise, that a consent to a c tion will be effective at a future time ( i ncluding a time dete r mined upon the happening of an ev e nt), no l a t e r t han

60 days after such instruction is given or such p r ovision is made and such consent s h all be deemed to have b e en given for purp o ses of this Section 3.9 at such e f fective time so long as such person is then a di r ector and did not revoke the c onsent prior to such time. Any such cons e nt shall be revocable prior

to its becoming effective.

 

3.10     F E ES AND CO M P EN S ATI O N OF DIRECT O RS

 

Unl e ss otherwise restr i c t ed by the c e rt i fi c ate of inco r po r at i on or these bylaws, the Board of D i rectors shall have the authority to fix the compensation of directors.

 

3.11    REMOVAL OF DIRECTORS

 

Any director or the entire Board of Direc t ors may be removed from office by stockholders of the Company in the manner specified in the certificate of incorporation and applicable law. No reduction of the authorized number of directors shall have the effect of r e moving any director prior to the expi r a tion of such di r ector’s term of office.

 

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ARTICLE IV—COMMITTEES

 

4 . 1    COMMIT T EES OF DIREC T ORS

 

The Board of Directors may, by resolution p a ssed by a majority of the Whole Board, designate one or more c omm i tt e es, e a ch c omm i t t ee to consist of one or more of the directors of the Company. The Board of Directors may designate one or more directors as a l t e rnate members of any com m it t ee, who may rep l ace a ny absent or disqualified member at any meeting of the committee. In the absence or disqualificati o n of a member of a com m it t ee, t he me m ber or m e mb e rs th e reof present at a ny m e e t ing and not disqualified from voting, whether or not such member or m e mb e rs con s titute a quorum, may unanimously appoint a nother member of t h e Board of D i rectors to act at the meeting in the place of any such abse n t or disqualified me m ber. Any such com m it t e e , to t he ext e nt p r ovided in the resolution of the Board of D i rectors or in these bylaws, shall have and m a y exer c ise a l l t he p o wers and authority of the Board of Direc t ors in the management of the business and aff a i r s of the Company, and may authorize the seal of the Company to be affixed to all papers that may require it; but no such committee shall have the power or autho r ity to ( a ) approve or adopt, or recommend to the stockholders, any action or matter (ot h er than the election or removal of directors) expressly required by the DGCL to b e sub m it t ed to

stockholders for approval, or (b) adopt, amend or repeal any bylaw of the Company.

 

4 . 2    COMMIT T EE MINUT E S

 

E a ch committee shall keep regu l ar minutes of its meetings.

 

4 . 3    M E E T INGS AND AC T ION OF COMM I TT E ES

 

Meetings and actions of com m ittees shall be governed by, and held and taken in accordance with, the provisions of: (a)   Section 3.5 (place o f m e etings and meet i ngs by telephone);

(b)    Section 3.6 (regular meetings);

 

(c)   Section 3.7 (spec i al meetings and notice); (d)    Section 3.8 (quorum; voting);

(e)   Section 3.9 (action without a meeting); and

 

(f)   Section 7.4 (waiver of notice)

 

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with such changes in the context of tho s e bylaws a s are n e c e s s ary to sub s t i tute t he c omm i tt e e and its me m bers for the Board of Di r ectors and its me m bers. How e v e r , (i) the time and place of regu l ar me e tings of co m mi t t e es may be determi n ed either by resolution of the Board of Directors or by resolut i on of the co m mi t te e ; (ii) sp e c i a l m e et i ngs of c omm i t t ees may also be called by resolution of the Board of Directors or the c omm i tt e e; a nd (iii) notice of special meetings of committees sha l l also be g i ven to a ll a l tern a te members who shall have the right to attend a l l m e e tings of the committee. The Board of Directors may adopt rules for the government of any commit t ee n ot inconsistent w i th the provisions of t hese bylaws.

 

Any provision in the certificate of incorpo r ation providing that one or m o re directors shall have more or less than one vote per director on any matter shall apply to voting in any commi t tee or subcommittee, unless o t herwise provided in the ce r tificate of incorporation or th e s e byl a w s .

 

4.4    SUBCOMMITTEES

 

Unless otherwise provided in the certifica t e of incorporation, these bylaws or the r e solutions of the Board of Directors desig n at i ng the c omm i tt e e, a c omm i t t ee m a y c rea t e one or more subcommittees, each subco m mittee to consist of o n e or more m e mbers of the committee, and deleg a te to a subcommittee any or all of the powers and authority of the committee.

 

 

ART I CLE V—OFFICE R S

 

5.1    OFFICERS

 

The officers of the Company shall be a pre s i d ent and a secretary. The Company may also have, at the discretion of the Board of Director s , a chairperson of the Board of Directors, a vice chairperson of the Board of Directors, a chi e f executive officer, a chief financ i al officer or treasurer, one or more vice presidents, one or more assistant vice presidents, one or more assist a nt tre a sur e rs, one or more a s sistant s e c ret a ri e s and any such other officers as may be appointed in accordance with the provisions of these bylaws. Any numb e r of offices may be held by the same person.

 

5.2     A PP O INT M E N T OF O F FICERS

 

The Board of Directors shall appoint the off i cers of the Company, except such officers as may be appointed in accordance with t he provisions of

Section 5.3 of these bylaws, subject to the rights, if any, of an officer under any contract of employment.

 

5.3    SUBORDINATE OFFICERS

 

The Board of Directors may appoint, or empower the chief executi v e officer or, in the absence of a chief executive officer, the p r esiden t , to appoint, such other officers as the business of the Company may require. Each of such officers shall hold office for such peri o d, have such authority, and perform such duties as are provided in these bylaws o r as the Board of Dir e c t ors may from ti m e to ti m e d e t e rmin e .

 

5.4    REMO V AL A ND RE S IGN A TION O F O F F I CERS

 

Subject to the rights, if any, of an off i cer under any contract of employment, any officer may b e removed, either with or with o ut cause, by the Board of Directors or, for the avoidance of doubt, any duly authorized committee or subc o m mittee t h ereof or by any officer who has been conferred such power of removal.

 

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Any officer may resign at any time by giving written notice to the Company. Any resignat i on sh a ll t a ke effe c t at the d a te of th e rec e ipt of that no t i c e or at a ny l a t e r t ime spe c ifi e d i n th a t noti c e. Unl e ss otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Company under any contract t o which the off i cer is a party.

 

5.5     V ACANCIES IN OF F ICES

 

Any vacancy occu r ring in any office of the Company shall be filled by the Board of Directors or as provided in Section 5.3.

 

5 . 6    RE P RE S ENTATION OF S ECURITI E S OF OTH E R EN T ITIES

 

The chairperson of the Board of Directors, the chi e f executive officer, the president, any vice president, the tre a surer, the s e c r e t a ry or a s sistant secretary of this Company or any other person authorized by the Board of Directors or the chi e f e xe c utive offic e r, the pre s id e nt or a vice president, is authorized to vote, r e present and exercise on behalf of this Company all rights incident to any and all shares or other securities of any other entity or entities, and all rights incident to any management authority conferred on the Comp a ny in accordance with the governing documents of any entity or entities, standing in the name of this C o mpany, including the right to act by written con s ent. The authority granted herein may be exercis e d either by such per s on directly or b y any other per s on authorized to do so by proxy or power of attorney duly executed by s u ch person hav i ng the authority.

 

5.7     A UT H ORITY A ND DUTIES OF OF F ICERS

 

All office r s of t h e Company shall respectively have such authori t y and perform such duties in the management of the business of the Company as may be designated from time to time by the Boa r d of Directors and, to the extent not so provided, as gener a lly per t ain to the i r respective offices, subject to the control of the Board of Directors.

 

 

ARTICLE VI—STOCK

 

6.1     S T O CK CERTIFICATE S ; P A RTLY PAID S HARES

 

The shares of the Company shall be repre s ented by certificates, provid e d that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be un c e rt i fic a t e d shar e s . Any such resolution shall not apply to sh a res r e presen t e d by a cer t ifi c a t e until such cer t if i ca t e is surrend e red to t he Company. Unless otherwise provided by resolution of the Board of Directors, every holder of stock repres e n t e d by c e rt i fi c at e s shall be en t it l ed to have a c e rti f icate signed by, or in the name of, the Company by any two autho r i z ed offic e rs of t he Company representing the number of shares r e gist e red in c e r t ifi c a t e f orm. Any or all of the signatures on the certificate may be a fa c sim i le. In c a se a ny officer, transfer agent or registrar who has signed or whose f acsimile signature has been pl a ced upon a certificate has ceased to be such offi c e r, t ransfer agent or regist r a r before such certifica t e i s issued, it m a y be i s sued by t he Co m pany w i th the s a me e ffect a s if su c h

 

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person were such officer, transfer agent or registrar at the date of issue. The Company shall not have power to issue a certif i c a te in bea r er fo r m.

 

The Company may issue the whole or any part of its shares as partly paid and subject to call for t h e remainder o f the consider a tion to be paid therefor. Upon the face or back of each stock certi f icate iss u ed to represent any such partly-paid shares, or upon the books a n d records of the Company in the case of u n certificated p a rtly-paid shares, the total amount of the consideration to be paid therefor and the amount paid t her e on sha l l be st a ted. Upon the declaration of any d i vidend on f ully-paid shares, the C o mpany shall declare a dividend upon partly-paid shares of the same class, but only u p on the basis of the percentage of t h e consideration actually paid thereon.

 

6.2     S P ECIAL DESI G NATION ON CERTI F ICATES

 

If the Comp a ny i s au t horiz e d t o issue more t h an one class of stock or more than one s e r i es of any c l ass, t hen t he pow e rs, t he d esignations, the preferences and the 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 r i ghts shall be set forth in full or summar ize d on the f a ce or b a ck of the c e rtifi c ate th a t the Comp a ny shall i s sue to represe n t such class or se r ies of stock; provided, howeve r , that, except as otherwise provided in Sec t ion 202 of the DGCL, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate that the Company sh a l l i s sue to r e pre s ent s uch cl as s or series of stock, a statement that the Company will f urnish without charge to e a ch st o c kholder who so requests t h e powers, designations, prefe r enc e s and relative, participating, optional or other special rights of each class of stock or series thereof and the qua l if i ca t ions, li m it a tions or restrictions of such preferences and/or rights. W ith i n a re a son a ble t i me a f ter the issuan c e or transfer of uncertificated stock, t he regist e red own e r t hereof shall be given a notice, in writing or by electronic transmission, conta i ning the information required to be set f o rth or stated on certificates pursuant t o this Section 6.2 or

Sections 156, 202(a), 218(a) or 364 of the DGCL or with respect to this Section 6.2 a statement that the Company will furnish w ithout charge to each stockholder who so requests the powers, des i gnations, prefe r ences and relative, participating, optional or other special rights of each class of stock or

s e ries ther e of a nd t h e qu a li f ic a tions, l i mi t a t i ons or restrictions of such preferences and/or ri g hts. Except as otherwise expr e ssly provided by law, the rights and obligations of the holders of un c ertificated stock and the rights and obligations of the holders of certificates representing stock of the same

cl a s s and s e r ies sh a ll be iden t ic a l.

 

6.3    LOST CERTIFICATES

 

Except as provided in this Sec t ion 6 . 3, no n e w c e rti f ic a tes for shar e s shall be issued to r e pl a ce a prev i ous l y issued cer t if i c at e un l e s s th e l a t t e r is surrendered to the Company and can c e ll e d a t the same t im e . The Comp a ny m a y i s sue a new c e r t ifi c ate of s t ock or uncertificated s hares in the place of any c e r t ifi c a t e t her e tofore issued by i t , al le ged to have been lost, stolen or destroyed, and t h e Company may require the ow n e r of the lost, st o l en or destroyed certificate, or such owner’s l e g a l representative, to give the Company a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certifi c ate or the issuance of such new certificate or uncertificated shares.

 

6.4     D I V IDENDS

 

The Board of Directors, subject to any restrictions contained in the certificate of inco r poration or applicable law, may declare and p a y dividends u p on the shares of the Company’s capital stock. Dividends

 

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may be paid in cash, in property, or in shares of the Company’s capital stock, subject to the prov i sions of the certificate of incorporation. The Board of Directors may set apart out of any of the funds of the Company available for dividends a reser v e or reserves for any proper pu r pose and may abolish any su c h r e s e rve.

 

6.5    TRAN S FER O F STOCK

 

Transfers of record of shares of stock of the Company shall be made only upon its books by the holders thereof, in person or by an a t torney duly authorized, and, if such stock is certificated, upon the sur r ender of a certificate or certificates for a like number of shares, p r o perly endorsed or accompa n i ed by proper evidence of success i on, assignation or authority to transfer.

 

6.6     S T O CK TRA N SFER A GREE M E N TS

 

The Company shall have power to enter into and perform any agree m ent with any number of stockholders of any one or mo r e classes of stock of the Company to restrict the transfer of shares of stock of t h e Company of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.

 

6.7    REGISTERED S T OC K HOLDERS The Company:

(a)   shall be entitled to recognize the exclusive right of a person registered on i t s books as the owner of shares to receive dividends and n o tices and to vote as such owner; and

 

(b)    shall not be bound to recognize any e quitable or other claim to or i n terest in such share or shares on the part of anot h er person, whether or not it shall have express or other notice thereof, except as oth e rwise provided by the laws of D e l a w a re.

 

 

A R TICLE V I I—M A NNER OF GIV I NG NOTI C E A N D WAIVER

 

7.1     N OTICE OF STOCK H OLDERS’ M E ETINGS

 

Notice of any meeting of sto c kholders shall be given in the manner set forth in the DGCL.

 

7.2    NOTICE TO STOC K HOLDERS SH A RING AN AD D RE S S

 

Except as otherwise prohibited under the DGCL, with o ut limiting the manner by which notice otherwise may be given effectively t o stockholders, any notice to stockholders given by the Company under the provisions of the DGCL, the certificate of incorporation or these bylaws sha l l be e ffe c tive i f given by a single written notice to stockhol d e rs who share an address if consent e d to by the stockholders at that a d d r ess to w h om such notice is given. Any such consent shall be revo c able by the stockholder by written notice to the Company. Any s t ockholder who fails to object in wri t ing to the Company, within 60 days of having been g i ven written notice by the Company of its intention to send the single notice, shall be deemed to have consented to receiving such single written notice. This Section 7.2 shall not apply to Sections 164, 296, 311, 312 or 324 of the DGCL.

 

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7.3    NOTICE TO PERSON WITH WH O M C O MM U NICATION IS UNLAWF U L

 

Whenever notice is req u ired to be given, under the DGCL, the certificate of incorpora t ion or these bylaws, to any person with whom communication is unlawf u l, the giving o f such notice to such person shall not be required and there s h all be no duty to apply t o any governmental authority or agency for a license or permit to give such notice to such person. Any action or m e eting which shall be taken or h eld without notice to any such pe r s on with whom communicat i on is unlawful shall have the same force and effect as if such notice had been duly given. In the e vent th a t t he action taken by the Company is such as to r e quire the filing of a cer t ificate under the DGCL, the ce r tificate shall state, if s uch is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communic a tion is unlawful.

 

7.4    WAIVER OF NOTICE

 

Whenever notice is req u ired to be given under any p r o vision of the DGCL, the certificate of incorporation or these bylaws, a w r i t t e n wa iv e r, sig n ed by the person entitled to notice, or a waiver by electronic t r ansmission by the pe r s on entitled to notice, whether before or af t e r the t i me of t he event for which notice is to be given, sh a ll be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of ob j ecting at the beginning of the meeting, to the transaction of any b u siness because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written w a iver of notice or any waiver by electronic transmission unless s o required by the certificate of incorporation or these bylaws.

 

 

A R TICLE VI I I—I N DEM N IFIC A TION

 

8.1    IN D E M NIFIC A T I O N O F DIRECTORS A ND OF F ICERS IN THIRD PARTY PR O CEEDIN G S

 

Subject to the other provisions of this Article VIII, the Company shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, any person who was or i s a par t y or is thr e a t ened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative o r inv e s t iga t ive (a “ P r oc e e d i n g ”) (other than an action by or in the right of the Company) by reason of the fact that such person is or was a director or of f icer of the Company, or is or was a director or officer of the Company serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterpris e , against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding if such person acted in good faith and in a man n er such person reasonably beli e ved to b e in or not op p osed to the best in t e r e s t s of t he Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe s u ch person ’ s conduct was unlawful. T he

termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo c o ntendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not op p os e d to the best int e r e sts of the Company, and, with respect to any criminal action or proceeding, had reasonab l e cause to believe that such person’s con d uct was unlawful.

 

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8.2    IN D E M NIFIC A T I O N O F DIRECTORS A ND OF F ICERS IN ACTIO N S BY O R IN T H E RIGHT OF T H E CO M P ANY

 

Subject to the other provisions of this Article VIII, the Company shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, any person who was or i s a par t y or is thr e a t ened to be made a party to any threatened, pending or completed P r oceeding by or in the right of the Company to procure a judgment in its f a vor aga i nst ex p e nses (i n c luding attorne y s’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such Proceeding if such per s on acted in good faith and in a manner such person reasonably believed to

be in or not opp o sed to the best interests of the Company; except that no indemnific a tion shall be made in r e spect of any claim, i s su e o r m a t t e r a s to which such person shall have been adjudged to be liable to the Company unless and only to the extent that the Court of Chancery or the c ourt in whi c h

such action or suit was brought s h all determine upon applicati o n that, despite the a d judication of liability but in view of all the circumst a nc e s of the

case, such person is fairly and reasonably e n ti t l e d to ind e mni t y for su c h expenses which the Court of Chanc e ry or such o t her c o urt shall deem proper.

 

8.3     S UCCESS F UL DEFEN S E

 

To the extent that a present or former director or officer of the Company has been successful on the merits or otherwise in defense of any action, suit or proceeding described in S e ction 8.1 or Section 8.2, or in defense of any claim, issue or matter therein, such person s h all be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by s u ch person in connection therewith.

 

8.4    INDEMNIFIC A T I O N O F OTHERS

 

Subject to the other provisions of this Arti c le VIII, the Company shall have power to indemnify its employees and agents to the extent not prohibited by the DGCL or other applicable law. The Board of Directors shall have the power to d e legate to any person or perso n s id e ntif i e d in subsections ( 1 ) through (4) of Section 145(d) of the DGCL the determination of whether employees or agents shall be indemnifie d .

 

8.5     A DVA N CED P AY M ENT OF E X PENSES

 

Expenses (including a ttorneys’ fees) actually and reasonably incurred by an of f icer or director of the Company in defending any Proceeding shall be paid by the Company in advance of the final dispositi o n of such Proceeding upon rece i pt of a written request therefor (toge t her with documentation reasonably evidencing such expenses) and an undertaking by or on behalf of the person to repay such amounts if it shall ultima t ely be determined that the person is not entitled to be indemnifi e d under this Article VIII or the DGCL. Such expenses (including attorneys’ fees) actually and reasonably incurred by former directors and o fficers or other employees and agents of the Company or by persons serving at the request of t he Company as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or oth e r enterprise may be so paid upon such terms and conditions, if any, as the Company deems ap p r o p r iate. The right to adv a ncement of expenses shall not apply to any Proceeding ( o r any part of any Proceeding) for which indemnity is excluded pursuant to t h ese bylaws, but shall apply to any Proceeding (or any part of any Proceeding) referenced in Section 8.6(b) or 8.6(c) prior to a determination that the person is not entit l ed to be indemnified by the Company.

 

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Notwithstanding the foregoing, unle s s otherwise determined pursuant to Section 8.8, no advance shall be made by the Company to an officer of

 

 

the Company (except by reason of the fact that such officer is or was a director of the Company, in which event this paragraph shall not apply) in any Proceeding if a determination is reasonably and promptly made (a) by a vote of the directors who are not parties to such Proce e ding, even though less than a quorum, or (b) by a committee of such directors designated by the vote of the majority of such directors, even though l e ss than a quorum, or (c) if there are no such directors, or if such directors so direct, by indep e ndent legal counsel in a w r itten opinion, that facts known to the decision-making

party at the time such determination is m a de demonstrate clearly and c o nvincingly that such person acted in bad faith or in a m anner that such person did not believe to be in or not opposed to the best interests of the Company.

 

8.6    LIMITATION ON INDEM N IFICATION

 

Subject to the requirements in Section 8.3 and the DGCL, the C o mpany shall not be obligated to indemnify any person pursuant to this

Article VIII in connection with any Proceeding (or any part of any Proceeding):

 

(a)   for which payment has a c tually been made to or on behalf of such pe r s on under any statute, insur a nce policy, indemnity provision, v o te or otherwise, except with respect to any excess beyond the amount paid;

 

(b)    for an accounting or disgorgement of profits pursuant to Section 16(b) of the 1934 Act, or similar provisions of federa l , s t a te or loc a l statutory law or common l a w, if such person is held liable therefor ( i ncluding pursuant to any settlement arrangements);

 

(c)   for any reimbursement of the Company by such person of any bonus or other incentive-based or equity-based compensation o r of any profits realized by such person from the sale of secur i ties of the Company, as required in each case under the 1934 Act (including a n y such reimbursements that arise from an accounting restatement of the Company pursua n t to Section 3 0 4 of the Sarbanes-Oxley Act of 2 0 02 (t h e “ Sarbanes- Oxley Act ”), or the payment to the Company of profits arising from the pu r chase and sale by such person of securities in violation of S e ction 306 of the S a rbanes-Oxl e y Act ) , if such person i s he l d l iab l e the r efor (including pursuant to a ny settlement arrangements);

 

(d)    initiated by such perso n , including any Proceeding (or any part of any Proceeding) initiated by such person agai n st the Company or its directors, officers, employee s , agents or other indemnitees, unless (i) the Board of Di r ec t ors authorized the Proceeding ( o r the relevant part of the Pro c eed i ng) pr i or to i t s ini t i a tion, ( i i) the Company provides the indemnification, in its sole discretion, pursuant to the po w ers v e sted in the Comp a ny u n der applicable law, (iii) otherwise required to be made under Section 8.7 or (iv) otherwise required by applicable law; or

 

(e)   if prohibited by applicable law.

 

8 . 7    D E T E RMINATION; C L AIM

 

If a claim for indemnification or advancement of expenses under this Art i cle VIII is not paid in full within 90 days after rec e ipt by the Company of the wri t ten requ e st t here f o r , the c l ai m a nt s h a ll be en t it l ed to an adjudication by a court of competent jurisdiction of his or her en t it l e m ent to su c h

 

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indemnification or advancement of expenses. The Company shall indemnify such person against any and all exp e n s es that are a c tu a lly and reasonably

 

 

incurred by such person in connection with any action for indemni f ication or advancement of expenses from t h e Company under th i s Article VIII, to the extent such pe r s on is successful in such action, and to the extent not prohibited by l a w. In any such suit, the Company shall, to the ful l est ext e nt not prohibited by law, have the burden of proving th a t the c l ai m a nt is not e nti t led to the requested indemnification o r advancement of expenses.

 

8.8     N ON-EXCLUSI V ITY OF RIG H TS

 

The indemnification and advancement of exp e nses provided by, or granted pursuant to, t h is Article VIII shall not be deemed exc l usive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the certificate of incorp o ration or any statute, b y law, agreement, vote o f stockho l ders or disinterested directors or o t herwise, both as to act i on in such person’s official capacity and as to action in another capacity while holding such offi c e . T he Co m pany is spe c ifi c a l ly a uthori z ed to ent e r i nto i ndividu a l contr a c t s w i th any or all of its directors, officers, emplo y ees or agents r e specting indemnification and adv a ncement of expenses, to the fullest extent not prohibited by t he DGCL or other appl i cab l e law.

 

8.9    INSURANCE

 

The Company may purchase and maintain insur a nce on behalf of any person who is or was a director, officer, employee or agent of the Company, or is or was serving at the request of t h e Company as a director, officer, employee or agent of another corporation, partnersh i p, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arisi n g out of such person’s status as such, whether or not the Company would have the power to i ndemnify such person against such liability under the provisions of the DGCL.

 

8.10    SURVIVAL

 

The rights to indemnification and advancement of exp e nses conferred b y this A r ticle VIII s h all continue as to a person who has c e ased to be a director, officer, employee or agent and sha l l inure to the benefit of the heirs, executors and administrators of such a person.

 

8.11    EF F E CT O F RE P E A L OR M ODI F ICATION

 

A right to indemnification or to advance m ent of expenses arising under a provision of the certificate of incorporation or a by l aw shall not be el i min a ted or i mp a ired by a n a mend m ent to the c e rti f ic a te of i n corporation or these bylaws after the o c curr e nce of t he act or o mission that is the subje c t of the c ivi l , cri m in a l, ad m inistr a tive or inv e s t iga t ive a c tion, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such ac t ion or omission has occurred.

 

8.12    CERT A IN DE F INITIONS

 

For purposes of this Article VIII, references to the “ Co m p any ” sh a ll in c lude, i n a ddit i on to the r e s u lting company, any constituent company (including any constituent of a c onstituent) absorbed in a c o nsolidation or merger wh i c h, if i t s s e par a te existence had contin u ed, would have had power and authority to indemnify its directors, o fficers, employees or agents, so that a n y person who is or was a director, officer, employee or agent of such constituent company, or is or was serving at the request of

 

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s uch c onst i tuent compa n y a s a dir e ctor, off i cer, employee or agent of another corpora t ion, p a rtnership, j o int venture, trust or other enterprise, shall stand in the same position under the provisi o ns of this Article VIII with respect to the resul t ing or surviving company as such pers o n would have with respect to such constituent company if its separ a te existence had c o ntinued. For purposes of this Art i cle VIII, references to “ oth e r e n te r p r is e s ” sh a ll in c lude employee benefit plans; references to “ fines ” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “ s e rvi n g at t h e r e q u est of the Compan y ” shall include any service as a di r ector, off i cer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent w i th respect to an e m ployee benefit plan, its participants or beneficiaries; and a per s on who acted in good faith and in a manner such p e rson reasonably believed to be in the interest of t h e par t ic i pants and

beneficiaries of an employee benefit plan s h all be deemed to have acted in a manner “ not opposed to the best interests of the Company ” as referred to in this Article VIII.

 

 

ARTICLE IX—GENERAL MATTERS

 

9.1    EXECUTION OF COR P ORATE CO N T R A CTS A N D I N STRUMENTS

 

Except as otherwise provided by law, the certif i cate of incorporation or t h ese bylaws, the Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute any do c ument or instrument in the name of and on behalf o f the Company; such authority may

be general or confined to specific instances. Unless so authorized or ratified by the Board of Directors or within the agency p ower of an officer, no officer, agent or employee shall have any po w er or authority to bind the Company by any contract or engagement or to pledge its credit or to render it

liable for any purpose or for any amount.

 

9.2    FISCAL YEAR

 

The fiscal year of the Company shall be fixed by resolution of the Board of Directors and may be changed by the Board of Directors.

 

9.3    SEAL

 

The Company may adopt a corporate seal, whi c h shall be adopted and which may be alter e d by the Board of Directors. The Company may use the corporate seal by causing it or a facsi m ile thereof to be impressed or affixed or in any other manner reproduced.

 

9.4    C O NSTRUCTION; D E F INITIONS

 

Unless the context requires otherwise, the general prov i sions, rules of construction, and definitions in the DGCL shall govern the construction of these bylaws. Without limiting t h e generality of this provision, the singular number includes the plural, the plural n u mber includes the singular, and the term “ p e rso n ” includes a company (including, but not lim i ted to, a l i m i ted li a bi l ity comp a ny), corporation, partne r s hip, joint venture, t r ust or o t her enterprise, and a natural person. Any reference in these bylaws to a section of the DGCL shall be d e em e d t o r e fer t o such sec t ion as amended from time to time and any succe s sor provisions thereto.

 

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9.5    FORUM SELECTION

 

Unl e ss the Comp a ny cons e nts in writ i ng to t h e s e l ec t ion of an a l tern a t i ve f o r um, the Court of Ch a nc e ry of the S ta t e of De l a ware (or, if the Court of Chancery does not have jurisdiction, ano t her S t a t e c ourt in D e law a re or the f e der a l district court for t h e Dist r ict of D e la war e ) s h a ll, t o the ful l e s t extent p e rmitted by law, be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Company, (b) any action asserting a claim of breach of a fiduciary duty owed by any dir e ctor, stockholder, officer or other employee of the Company to the Com p any or the Company’s stockholders, (c) any action a r ising pursuant to any provision of the DGCL or the certificate of incorporation or th e se bylaws (as eit h er may be amended f r om time to time) or (d) a n y action asserting a claim governed by the internal affairs doctrine, except for, as to each of (a) through (d) above, any claim as to which such court det e rmines that there is an indispensable p a rty not subject to the jurisdiction of such court (and the indispensable party does not consent to the personal jurisdiction of such court within 10 days following such determination), which is v e sted in the exclusive jurisdiction of a court or forum other than such court or for which such court does n o t have subject m a t t er jurisdi c tion. Further, unless the Company consents in writing to the s e l e ct i on of an al t e rn a tive forum, t he fed e ral distr i ct cour t s of t he Un i ted S t at e s of A m er i ca s hall be the ex c lusive forum for the resolution of any complaint a sserting a cause of action arising under the Securities A c t of 1933, as amended. Any person or entity p u r c hasing or otherwise acquiring any interest in any security of the Compa n y shall be deemed to have notice of and consented to the provisions of this Section 9.5.

 

 

A R TICLE X—AMEN D M ENTS

 

These bylaws may be adopted, amended or r e pealed by the stockholders entitled to vote; provided, however, that the affirmative vote of the h o lders of at least 66 2/3% of the total voting power of outstanding voting s e cur i ti e s, voting together as a s i ng le c l a ss , s h a l l be required for the stockholders of the Company to alter, am e nd or repeal, or adopt any by l aw inconsistent with, the f o llowing provisions of these by l aws: Art i c l e I I, Sections 3.1, 3.2, 3.4 and 3.11 of Article III, Article VIII and this Article X (including, w ithout limitation, any such Artic l e or Section as renumbered as a result of any amendment, alteration, change, repeal, or adoption of any ot h e r Bylaw). The Board of Directors shall also have the power to adopt, amend or repeal bylaws; provid e d, howe v er, that a bylaw amendment adopted by stockholders which specifi e s t h e votes that shall be necessary for the election of directors shall not be fu r ther am e nded or repealed by the Board of Directors.

 

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