UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 16, 2008
VANDA PHARMACEUTICALS INC.
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
(State or other jurisdiction of incorporation)
| 000-51863 | 03-0491827 | |
| (Commission File No.) | (IRS Employer Identification No.) |
9605 Medical Center Drive
Suite 300
Rockville, Maryland 20850
(Address of principal executive offices and zip code)
Suite 300
Rockville, Maryland 20850
(Address of principal executive offices and zip code)
Registrant’s telephone number, including area code: (240) 599-4500
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 2.05 Costs Associated with Exit or Disposal Activities
On December 16, 2008, Vanda Pharmaceuticals Inc. (the “Company” or “Vanda”) committed to a plan of termination that resulted in a work
force reduction of 17 employees, including the two officers set forth in Item 5.02(b) below (the
“Departing Officers”), in order to reduce operating costs. The Company commenced notification of
employees affected by the workforce reduction on December 17, 2008, and the workforce reduction is
expected to be completed by December 31, 2008. Upon completion of this workforce reduction, the
Company will have 25 full time employees. This represents a reduction of approximately 53% from
the 53 employees the Company had on August 1, 2008 following the Company’s receipt of the not
approvable letter from the United States Food and Drug Administration (the “FDA”) regarding its New
Drug Application (the “NDA”) for its lead compound, iloperidone. In addition, the Company does not
expect to incur any new clinical trial costs in the first quarter of 2009.
Each affected employee, other than the Departing Officers, will receive his or her base salary
for three months and will be eligible for the payment of monthly COBRA health insurance premiums
for six months following the date of such employee’s termination. Payment of these severance benefits to each affected employee is contingent on the
affected employee’s entering into a separation agreement with the Company, which agreement includes
a general release of claims against the Company.
In addition to the severance and COBRA benefits described above, each of the affected
employees (including the Departing Officers) will receive an additional three months of vesting
under each of such employee’s outstanding stock options granted under the Company’s equity
incentive plans, and will have six months following the date of such employee’s termination of
employment to exercise any of such options. In connection with such benefits, the Company expects
to incur non-cash charges in accordance with Statement of Financial Accounting Standards
(SFAS) No. 123(R), which the Company does not expect to be material.
As a result of the reduction in force, the Company estimates that it will record a one-time
severance-related charge of approximately $1.3 million in the fourth quarter of 2008, which
includes amounts payable to the Departing Officers as set forth in Item 5.02(b) below, but does not
include the non-cash charges described in the preceding paragraph. The severance-related charge
that the Company expects to incur in connection with the reduction in force is subject to a number
of assumptions, and actual results may differ. The Company may also incur other charges not
currently contemplated due to events that may occur as a result of, or associated with, the
workforce reduction.
Three of the affected employees will enter into consulting agreements with the Company. The
Company cannot estimate with any certainty the amounts that may be paid, if any, for consulting
services under such agreements. Each affected employee who enters into such a consulting agreement
will receive restricted stock units (“RSUs”) under the Company’s 2006 Equity Incentive Plan (the
“Plan”). One-half of the RSUs held by each such affected employee will vest, if at all, upon such
affected employee’s subsequent re-hiring by the Company and the remaining one-half of the RSUs will
vest, if at all, on December 31, 2009, provided such affected employee remains employed by the
Company on such date. Based on a closing stock price of the Company’s common stock on the Nasdaq
Global Market of $0.57 per share on December 16, 2008, the aggregate fair value of these RSUs was
approximately $17,000. At this time, we can neither estimate with any certainty the timing, if any,
of the re-hiring of the employees, nor determine whether such employees will remain employed by the
Company as of December 31, 2009. Non-cash expense relating to these RSUs will be recognized when
such conditions are considered probable of being achieved.
The Company intends to enter into retention agreements with all remaining employees, other
than those who have existing employment agreements with the Company, pursuant to which such
employees will be entitled to the same severance, health and option benefits that the Company has
offered to the terminated employees.
This Item 2.05 contains “forward-looking statements” under the securities laws. Words such as,
but not limited to, “believe,” “expect,” “anticipate,” “estimate,” “intend,” “plan,” “targets,”
“likely,” “will,” “would,” and “could,” and similar expressions or words, identify forward-looking
statements. Forward-looking statements are based upon current expectations that involve risks,
changes in circumstances, assumptions and uncertainties. Vanda is at an early stage of development
and may not ever have any products that generate significant revenue. Important factors that could
cause actual results to differ materially from those reflected in the company’s forward-looking
statements include, among others: delays in the completion of Vanda’s clinical trials; a failure of
Vanda’s product candidates to be demonstrably safe and effective; Vanda’s failure to obtain
regulatory approval for its products or to comply with ongoing regulatory requirements; a lack of
acceptance of Vanda’s product candidates in the marketplace, or a failure to become or remain
profitable; Vanda’s inability to obtain the capital necessary to fund its research and development
activities; Vanda’s failure to identify or obtain rights to new product candidates; Vanda’s failure
to develop or obtain sales, marketing and distribution resources and expertise or to otherwise
manage its growth; a loss of any of Vanda’s key scientists or management personnel; losses incurred
from product liability claims made against Vanda; a loss of rights to develop and commercialize
Vanda’s products under its license and sublicense agreements and other factors that are described
in the “Risk Factors” section (Part II, Item 1A) of Vanda’s quarterly report on Form 10-Q for the
quarter ended September 30, 2008 (File No. 000-51863). In addition to the risks described above and
in Part II, Item 1A of Vanda’s quarterly report on Form 10-Q, other unknown or unpredictable
factors also could affect Vanda’s results. There can be no assurance that the actual results or
developments anticipated by Vanda will be realized or, even if substantially realized, that they
will have the expected consequences to, or effects on, Vanda. Therefore, no assurance can be given
that the outcomes stated in such forward-looking statements and estimates will be achieved.
All written and verbal forward-looking statements attributable to Vanda or any person acting
on its behalf are expressly qualified in their entirety by the cautionary statements contained or
referred to herein. Vanda cautions investors not to rely too heavily on the forward-looking
statements Vanda makes or that are made on its behalf. The
information in this Current Report on Form 8-K is provided
only as of the date hereof, and Vanda undertakes no obligation, and specifically declines
any obligation, to update or revise publicly any forward-looking statements, whether as a result of
new information, future events or otherwise.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
(b) On December 16, 2008, the Company committed to a plan of termination that resulted in a
workforce reduction. As part of this workforce reduction, the employment of Paolo Baroldi, M.D.,
Ph.D., Senior Vice President and Chief Medical Officer, and Steven A. Shallcross, Senior Vice
President, Chief Financial Officer and Treasurer, terminated. Dr. Baroldi and Mr. Shallcross will
continue their employment through January 9, 2009.
Pursuant to Dr. Baroldi’s employment agreement, and in exchange for a release of all claims,
he will receive the following severance benefits following his employment termination: (i) his
monthly base salary for 12 months; (ii) payment of his monthly COBRA health insurance premiums for
12 months; (iii) a cash payment of $80,000; and (iv) an additional three months of vesting under
each of his outstanding stock options granted under the Company’s equity incentive plans, with six
months following the termination of his employment to exercise any of such options.
Pursuant to Mr. Shallcross’ employment agreement, and in exchange for a release of all claims,
he will receive the following severance benefits following his employment termination: (i) his
monthly base salary for 12 months; (ii) payment of his monthly COBRA health insurance premiums for
12 months; (iii) a cash payment of $72,800; and (iv) an additional three months of vesting under
each of his outstanding stock options granted under the Company’s equity incentive plans, with six
months following the termination of his employment to exercise any of such options.
(c) On December 16, 2008, the Company promoted John Feeney III, M.D., age 54, to the position
of acting Chief Medical Officer of the Company, effective as of January 9, 2009. Dr. Feeney has
served as the Company’s Senior Medical Officer since November of 2007. Prior to joining the
Company, Dr. Feeney spent more than 15 years at the FDA in various capacities, including Medical
Officer in the Division of Neuropharmacological Drug Products,
Neurology Team Leader and, most recently, as the Acting Deputy Director in the Division of Neurology Products. In this role he
oversaw the group responsible for the development of all investigational drug products for
neurological indications, such as stroke, epilepsy, migraine, Parkinson’s disease, sleep disorders,
and Alzheimer’s disease. Dr. Feeney received his B.S. degree from University of California at San
Diego and his M.D. degree from Georgetown University Medical School.
The Company will enter into its standard indemnification agreement with Dr. Feeney, and has
granted to Dr. Feeney the 40,000 RSUs described below. Additional revised terms of Dr. Feeney’s
employment have not yet been determined.
On December 16, 2008, the Company promoted Stephanie Irish, age 38, to the position of acting
Chief Financial Officer and Treasurer of the Company, effective as of January 9, 2009. Ms. Irish
has served as the Company’s Controller since February of 2005. Prior to joining the Company, Ms.
Irish was Controller at Avalon Pharmaceuticals, Inc. from 2000 to February 2005. Ms. Irish was the
Chicago Cluster Controller for Marriott International, Senior Living Services Division from 1999 to
2000. From 1995 to 1999, she held several accounting positions at The Institute for Genomic
Research. From 1993 to 1995, she was an auditor at Beers & Cutler, Certified Public Accountants.
Ms. Irish received a B.S. in accounting from the University of Maryland. Ms. Irish is a certified
public accountant.
The Company will enter into its standard indemnification agreement with Ms. Irish, and has
granted to Ms. Irish the 40,000 RSUs described below. Additional revised terms of Ms. Irish’s
employment with the Company have not yet been determined.
On December 16, 2008, the Compensation Committee of the Company’s Board of Directors (the
“Board”) approved the issuance of RSUs under the Plan to each of the continuing employees of the
Company, including each of the Company’s continuing and new named executive officers, in lieu of
paying annual 2008 bonuses and 2009 salary increases to such employees. The number of RSUs received by each such
named executive officer is as follows:
| Name | Title | Number of RSUs Received | ||||
Mihales Polymeropoulos, M.D.
|
President and Chief Executive Officer | 150,000 | ||||
William D. Clark
|
Senior Vice President, Chief Business Officer and Secretary | 50,000 | ||||
John Feeney, M.D.
|
Chief Medical Officer | 40,000 | ||||
Stephanie Irish
|
Chief Financial Officer and Treasurer | 40,000 | ||||
All of such RSUs will initially be unvested and will vest as follows: 50% will vest, if at
all, upon approval by the FDA of the NDA for iloperidone, and 50% will vest on December 31, 2009.
In order to have his or her RSUs vest, a continuing employee (including the named executive
officers) must be providing services to the Company on the applicable vesting date.
All unvested RSUs will automatically vest in full upon the consummation of a change in control
of the Company for employees (including the named executive officers)
providing services to the Company at such time.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On December 16, 2008, the Board approved and adopted the Second Amended and Restated Bylaws of
the Company, which amended and restated the Company’s then existing Amended and Restated Bylaws, as
amended (the “Bylaws”). The amendments to the Bylaws were effective December 16, 2008. The Second
Amended and Restated Bylaws include amendments to Section 2.7 to, among other things,
require that a stockholder submitting business or nominating directors provide additional
disclosure regarding (i) any business being proposed by such stockholder, (ii) such stockholder’s
holdings in the Company, (iii) certain transactions entered into by such stockholder with respect
to the stock of the Company, (iv) certain agreements entered into by such stockholder with respect
to the proposal of business, and (v) the person whom such stockholder proposes to nominate for
election as a director. The amendments to Section 2.7 also include certain additional
qualifications, requirements and undertakings applicable to any person being nominated by a
stockholder for election as a director. In addition, the amendments to Section 2.7 include a
limitation providing that unless the stockholder proposing business (or such stockholder’s
qualified representative) appears at the meeting to present the proposed business, such business
will not be transacted. The Second Amended and Restated Bylaws also include certain amendments to
Article VI to provide additional procedures regarding indemnification of officers and directors
following a change in control of the Company. The Second Amended and Restated Bylaws also include
an amendment to Section 8.1 to increase the voting percentage required in order for stockholders to
adopt, amend or repeal any provision of the Bylaws, from 66 2/3% to of the voting power of all of
the then-outstanding shares of capital stock entitled to vote generally in the election of
directors to 80%. In addition, the Second Amended and Restated Bylaws include certain clarifying
amendments.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. | Description | |
3.11
|
Second Amended and Restated Bylaws of Vanda Pharmaceuticals Inc. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| VANDA PHARMACEUTICALS INC. |
||||
| By: | /s/ MIHAEL H. POLYMEROPOULOS | |||
| Name: | Mihael H. Polymeropoulos, M.D. | |||
| Title: | President and Chief Executive Officer | |||
Dated: December 17, 2008
Exhibit
3.11
SECOND AMENDED AND RESTATED
BYLAWS OF
VANDA PHARMACEUTICALS INC.
A DELAWARE CORPORATION
TABLE OF CONTENTS
| Page | ||||
ARTICLE I OFFICE AND RECORDS |
1 | |||
Section 1.1 Delaware Office |
1 | |||
Section 1.2 Other Offices |
1 | |||
Section 1.3 Books and Records |
1 | |||
ARTICLE II STOCKHOLDERS |
1 | |||
Section 2.1 Annual Meeting |
1 | |||
Section 2.2 Special Meeting |
1 | |||
Section 2.3 Place of Meeting |
1 | |||
Section 2.4 Notice of Meeting |
1 | |||
Section 2.5 Quorum and Adjournment |
2 | |||
Section 2.6 Proxies |
2 | |||
Section 2.7 Notice of Stockholder Business and Nominations |
2 | |||
Section 2.8 Procedure for Election of Directors |
6 | |||
Section 2.9 Inspectors of Elections |
6 | |||
Section 2.10 Conduct of Meetings |
6 | |||
Section 2.11 No Consent of Stockholders in Lieu of Meeting |
7 | |||
ARTICLE III BOARD OF DIRECTORS |
7 | |||
Section 3.1 General Powers |
7 | |||
Section 3.2 Number, Tenure and Qualifications |
7 | |||
Section 3.3 Regular Meetings |
8 | |||
Section 3.4 Special Meetings |
8 | |||
Section 3.5 Action by Unanimous Consent of Directors |
8 | |||
Section 3.6 Notice |
8 | |||
Section 3.7 Conference Telephone Meetings |
8 | |||
Section 3.8 Quorum |
8 | |||
Section 3.9 Vacancies |
8 | |||
Section 3.10 Committee |
9 | |||
Section 3.11 Removal |
9 | |||
ARTICLE IV OFFICERS |
9 | |||
Section 4.1 Elected Officers |
9 | |||
Section 4.2 Election and Term of Office |
10 | |||
Section 4.3 Chairman of the Board |
10 | |||
Section 4.4 Chief Executive Officer and President |
10 | |||
Section 4.5 Secretary |
10 | |||
Section 4.6 Treasurer |
10 | |||
Section 4.7 Removal |
11 | |||
Section 4.8 Vacancies |
11 | |||
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| Page | ||||
ARTICLE V STOCK CERTIFICATES AND TRANSFERS |
11 | |||
Section 5.1 Stock Certificates and Transfers |
11 | |||
ARTICLE VI INDEMNIFICATION |
11 | |||
Section 6.1 Right to Indemnification |
11 | |||
Section 6.2 Right to Advancement of Expenses |
12 | |||
Section 6.3 Right of Indemnitee to Bring Suit |
12 | |||
Section 6.4 Non-Exclusivity of Rights |
13 | |||
Section 6.5 Insurance |
13 | |||
Section 6.6 Indemnification Following a Change of Control |
13 | |||
Section 6.7 Amendment of Rights |
15 | |||
ARTICLE VII MISCELLANEOUS PROVISIONS |
15 | |||
Section 7.1 Fiscal Year |
15 | |||
Section 7.2 Dividends |
15 | |||
Section 7.3 Seal |
15 | |||
Section 7.4 Waiver of Notice |
16 | |||
Section 7.5 Audits |
16 | |||
Section 7.6 Resignations |
16 | |||
Section 7.7 Contracts |
16 | |||
Section 7.8 Proxies |
16 | |||
ARTICLE VIII AMENDMENTS |
17 | |||
Section 8.1 Amendments |
17 | |||
ii
ARTICLE I
OFFICES AND RECORDS
Section 1.1 Delaware Office. The registered office of the Corporation in the State of
Delaware shall be located in the City of Wilmington, County of New Castle.
Section 1.2 Other Offices. The Corporation may have such other offices, either within
or without the State of Delaware, as the Board of Directors may designate or as the business of the
Corporation may from time to time require.
Section 1.3 Books and Records. The books and records of the Corporation may be kept
at the Corporation’s headquarters in Rockville, Maryland or at such other locations outside the
State of Delaware as may from time to time be designated by the Board of Directors.
ARTICLE II
STOCKHOLDERS
Section 2.1 Annual Meeting. The annual meeting of the stockholders of the Corporation
shall be held at such date, place and/or time as may be fixed by resolution of the Board of
Directors.
Section 2.2 Special Meeting. Special meetings of stockholders of the Corporation may
be called only by the Chairman of the Board or the Chief Executive Officer or by the Board of
Directors acting pursuant to a resolution adopted by a majority of the Whole Board. For purposes
of these Second Amended and Restated Bylaws (the “Bylaws”), the term “Whole Board” shall mean the
total number of authorized directors whether or not there exist any vacancies in previously
authorized directorships.
Section 2.3 Place of Meeting. The Board of Directors may designate the place of
meeting for any meeting of the stockholders. If no designation is made by the Board of Directors,
the place of meeting shall be the principal office of the Corporation.
Section 2.4 Notice of Meeting. Except as otherwise required by law, written, printed
or electronic notice stating the place, day and hour of the meeting and the purposes for which the
meeting is called shall be prepared and delivered by the Corporation not less than ten (10) days
nor more than sixty (60) days before the date of the meeting, either personally, by mail, or in the
case of stockholders who have consented to such delivery, by electronic transmission (as such term
is defined in the Delaware General Corporation Law), to each stockholder of record entitled to vote
at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the U.S.
mail with postage thereon prepaid, addressed to the stockholder at his address as it appears on the
stock transfer books of the Corporation. Notice given by electronic transmission shall be
effective (A) if by facsimile, when faxed to a number where the stockholder has consented to
receive notice; (B) if by electronic mail, when mailed electronically to an electronic mail address
at which the stockholder has consented to receive such notice; (C) if by posting on an electronic
network together with a separate notice of such posting, upon the later to occur of (1) the posting
or (2) the giving of separate notice of the posting; or (D) if by
1
other form of electronic communication, when directed to the stockholder in the manner
consented to by the stockholder. Meetings may be held without notice if all stockholders entitled
to vote are present (except as otherwise provided by law), or if notice is waived by those not
present. Any previously scheduled meeting of the stockholders may be postponed and (unless the
Corporation’s Restated Certificate of Incorporation (the “Certificate of Incorporation”) otherwise
provides) any special meeting of the stockholders may be cancelled, by resolution of the Board of
Directors upon public notice given prior to the time previously scheduled for such meeting of
stockholders.
Section 2.5 Quorum and Adjournment. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the voting power of the outstanding
shares of the Corporation entitled to vote generally in the election of directors (the “Voting
Stock”), represented in person or by proxy, shall constitute a quorum at a meeting of stockholders,
except that when specified business is to be voted on by a class or series voting separately as a
class or series, the holders of a majority of the voting power of the shares of such class or
series shall constitute a quorum for the transaction of such business for the purposes of taking
action on such business. No notice of the time and place of adjourned meetings need be given
provided such adjournment is for less than thirty (30) days and further provided that no new record
date is fixed for the adjourned meeting.
Section 2.6 Proxies. At all meetings of stockholders, a stockholder may vote by proxy
executed in writing by the stockholder or as may be permitted by law, or by his duly authorized
attorney-in-fact. Such proxy must be filed with the Secretary of the Corporation or his
representative, or otherwise delivered telephonically or electronically as set forth in the
applicable proxy statement, at or before the time of the meeting.
Section 2.7 Notice of Stockholder Business and Nominations.
A. Nominations of persons for election to the Board of Directors and the proposal of business
to be transacted by the stockholders may be made at an annual meeting of stockholders (1) pursuant
to the Corporation’s notice with respect to such meeting, (2) by or at the direction of the Board
of Directors or a committee thereof or (3) by any stockholder of record of the Corporation who was
a stockholder of record at the time of the giving of the notice provided for in the following
paragraph, who is entitled to vote at the meeting and who has complied with the notice procedures
set forth in this Section 2.7.
B. For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to paragraph (A)(3) of this Section 2.7, (1) the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation, (2) such business must be a
proper matter for stockholder action under the Delaware General Corporation Law, (3) if the
stockholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has
provided the Corporation with a Solicitation Notice, as that term is defined in subclause (c)(iii)
of this paragraph, such stockholder or beneficial owner must, in the case of a proposal, have
delivered prior to the meeting a proxy statement and form of proxy to holders of at least the
percentage of the Corporation’s voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered prior to the meeting a
proxy statement and form of proxy to holders of a percentage of
2
the Corporation’s voting shares reasonably believed by such stockholder or beneficial holder
to be sufficient to elect the nominee or nominees proposed to be nominated by such stockholder, and
must, in either case, have included in such materials the Solicitation Notice and (4) if no
Solicitation Notice relating thereto has been timely provided pursuant to this section, the
stockholder or beneficial owner proposing such business or nomination must not have solicited a
number of proxies sufficient to have required the delivery of such a Solicitation Notice under this
section. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than forty-five (45) or more than seventy-five (75)
days prior to the first anniversary (the “Anniversary”) of the date on which the Corporation first
mailed its proxy materials for the preceding year’s annual meeting of stockholders; provided,
however, that if no proxy materials were mailed by the Corporation in connection with the preceding
year’s annual meeting, or if the date of the annual meeting is advanced more than thirty (30) days
prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s
annual meeting, notice by the stockholder to be timely must be so delivered not later than the
close of business on the later of (x) the 90th day prior to such annual meeting or (y) the 10th day
following the day on which public announcement of the date of such meeting is first made. To be
valid, such stockholder’s notice shall set forth: (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information relating to such
person as would be required to be disclosed in solicitations of proxies for the election of such
nominees as directors pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and such person’s written consent to serve as a director if elected;
(b) as to any other business that the stockholder proposes to bring before the meeting, a brief
description of such business, the text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event that such business includes a proposal to
amend the Bylaws of the Corporation, the language of the proposed amendment), the reasons for
conducting such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is made; (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such stockholder, as they appear on the Corporation’s
books, and of such beneficial owner, (ii) the class and number of shares of the Corporation that
are owned beneficially and of record by such stockholder and such beneficial owner and a
representation that the stockholder will notify the Corporation in writing of the class and number
of such shares owned beneficially and of record as of the record date for the meeting promptly
following the later of the record date or the date notice of the record date is first publicly
disclosed, (iii) whether either such stockholder or beneficial owner intends to deliver a proxy
statement and form of proxy to holders of, in the case of a proposal, at least the percentage of
the Corporation’s voting shares required under applicable law to carry the proposal or, in the case
of a nomination or nominations, a sufficient number of holders of the Corporation’s voting shares
to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation
Notice”) and (iv) whether and the extent to which any derivative instrument, swap, option, warrant,
short interest, hedge or profit interest or other transaction has been entered into by or on behalf
of such stockholder with respect to stock of the Corporation and whether any other agreement,
arrangement or understanding (including any short position or any borrowing or lending of shares of
stock) has been made by or on behalf of such stockholder, the effect or intent of any of the
foregoing being to mitigate loss to, or to manage risk of stock price changes for, such stockholder
or to increase or decrease the voting power or pecuniary or economic
3
interest of such stockholder with respect to stock of the Corporation; (d) any option,
warrant, convertible security, stock appreciation right, or similar right with an exercise or
conversion privilege or a settlement payment or mechanism at a price related to any class or series
of shares of the Corporation or with a value derived in whole or in part from the value of any
class or series of shares of the Corporation, whether or not such instrument or right shall be
subject to settlement in the underlying class or series of capital stock of the Corporation or
otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by such stockholder
and any other direct or indirect opportunity to profit or share in any profit derived from any
increase or decrease in the value of shares of the Corporation and a representation that the
stockholder will notify the Corporation in writing of any such Derivative Instrument in effect as
of the record date for the meeting promptly following the later of the record date or the date
notice of the record date is first publicly disclosed; (e) a description of any agreement,
arrangement or understanding with respect to the proposal of business between or among such
stockholder and the beneficial owner, if any, on whose behalf the proposal is made, any of their
respective affiliates or associates, and any others acting in concert with any of the foregoing and
a representation that the stockholder will notify the Corporation in writing of any such
agreements, arrangements or understandings in effect as of the record date for the meeting promptly
following the later of the record date or the date notice of the record date is first publicly
disclosed; (f) a description of any material interest of the stockholder and the beneficial owner,
if any, on whose behalf the proposal is made, in such business; (g) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to propose such business; and (h) any other
information that is required to be provided by the stockholder pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder in such stockholder’s capacity as
a proponent of a stockholder proposal.
C. In addition to the other requirements of this Section 2.7, a stockholder’s notice with
respect to the nomination of a director shall set forth as to each person whom the stockholder
proposes to nominate for election or reelection as a director (a) the name, age, business address
and residence address of the person; (b) the principal occupation or employment of the person;
(c) the class, series and number of shares of capital stock of the Corporation that are owned
beneficially and of record by the person; (d) a statement as to the person’s citizenship; (e) the
completed and signed representation and agreement described below; (f) any other information
relating to the person that is required to be disclosed in solicitations for proxies for election
of directors pursuant to Section 14 of the Exchange Act; (g) such person’s written consent to being
named in the proxy statement as a nominee and to serving as a director if elected; and (h) whether
and the extent to which any derivative instrument, swap, option, warrant, short interest, hedge or
profit interest or other transaction has been entered into by or on behalf of such person with
respect to stock of the Corporation and whether any other agreement, arrangement or understanding
(including any short position or any borrowing or lending of shares of stock) has been made by or
on behalf of such person, the effect or intent of any of the foregoing being to mitigate loss to,
or to manage risk of stock price changes for, such person or to increase or decrease the voting
power or pecuniary or economic interest of such person with respect to stock of the Corporation.
To be eligible to be a nominee for election or reelection as a director of the Corporation
pursuant to this Section 2.7, a person must deliver (in accordance with the time periods prescribed
for delivery of notice under this Section 2.7) to the Secretary of the Corporation at the principal
executive offices of the
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Corporation a written representation and agreement (in the form provided by the Secretary upon
written request) that such person (x) is not and will not become a party to (i) any agreement,
arrangement or understanding with, and has not given any commitment or assurance to, any person or
entity as to how such person, if elected as a director of the Corporation, will act or vote on any
issue or question (a “Voting Commitment”) or (ii) any Voting Commitment that could limit or
interfere with such person’s ability to comply, if elected as a director of the Corporation, with
such person’s fiduciary duties under applicable law, (y) is not and will not become a party to any
agreement, arrangement or understanding with any person or entity other than the Corporation with
respect to any direct or indirect compensation, reimbursement or indemnification in connection with
service or action as a director and (z) in such person’s individual capacity and on behalf of any
person or entity on whose behalf the nomination is being made, would be in compliance, if elected
as a director of the Corporation, and will comply with, applicable law and all applicable publicly
disclosed corporate governance, conflict of interest, confidentiality and stock ownership and
trading policies and guidelines of the Corporation.
D. Only persons nominated in accordance with the procedures set forth in this Section 2.7
shall be eligible to serve as directors and only such business shall be conducted at an annual
meeting of stockholders as shall have been brought before the meeting in accordance with the
procedures set forth in this Section 2.7. The chair of the meeting shall have the power and the
duty to determine whether a nomination or any business proposed to be brought before the meeting
has been made 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
proposed business or nomination shall not be presented for stockholder action at the meeting and
shall be disregarded. Notwithstanding any other provisions of this Section 2.7, unless otherwise
required by law, if the stockholder (or a qualified representative of the stockholder) does not
appear at the annual or special meeting of stockholders of the Corporation to present proposed
business, such proposed business shall not be transacted, notwithstanding that proxies in respect
of such proposed business may have been received by the Corporation. For purposes of this Section
2.7, to be considered a qualified representative of the stockholder, a person must be a duly
authorized officer, manager or partner of such stockholder or must be authorized by a writing
executed by such stockholder or an electronic transmission delivered by such stockholder to act for
such stockholder as proxy at the meeting of stockholders and such person must produce such writing
or electronic transmission, or a reliable reproduction of the writing or electronic transmission,
at the meeting of stockholders.
E. 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 (1) by or at the
direction of the Board of Directors or (2) by any stockholder of record of the Corporation who is a
stockholder of record at the time of giving of notice provided for in this paragraph, who shall be
entitled to vote at the meeting and who complies with the notice procedures set forth in this
Section 2.7. Nominations by stockholders of persons for election to the Board of Directors may be
made at such a special meeting of stockholders if the stockholder’s notice required by paragraph
(B) of this Section 2.7 shall be delivered to the
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Secretary at the principal executive offices of the Corporation not later than the close of
business on the later of the 90th day prior to such special meeting or the 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 to be elected at such meeting.
F. For purposes of this Section 2.7, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or a comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
G. Notwithstanding the foregoing provisions of this Section 2.7, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to matters set forth in this Section 2.7. Nothing in this Section 2.7
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.
Section 2.8 Procedure for Election of Directors. Election of directors at all
meetings of the stockholders at which directors are to be elected shall be by written ballot, and,
except as otherwise set forth in the Certificate of Incorporation with respect to the right of the
holders of any series of Preferred Stock or any other series or class of stock to elect additional
directors under specified circumstances, a plurality of the votes cast thereat shall elect
directors. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws,
all matters other than the election of directors submitted to the stockholders at any meeting shall
be decided by a majority of the votes cast affirmatively or negatively.
Section 2.9 Inspectors of Elections.
A. The Board of Directors by resolution shall appoint one or more inspectors, which inspector
or inspectors may include individuals who serve the Corporation in other capacities, including,
without limitation, as officers, employees, agents or representatives of the Corporation, to act at
the meeting and make a written report thereof. One or more persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector or alternate has been
appointed to act, or if all inspectors or alternates who have been appointed are unable to act, at
a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors to act
at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath
to execute faithfully the duties of inspector with strict impartiality and according to the best of
his or her ability. The inspectors shall have the duties prescribed by the Delaware General
Corporation Law.
Section 2.10 Conduct of Meetings.
A. The Chief Executive Officer shall preside at all meetings of the stockholders. In the
absence of the Chief Executive Officer, the Chairman of the Board shall preside at a meeting of the
stockholders. In the absence of the Chief Executive Officer or the Chairman of the Board, the
Secretary shall preside at a meeting of the stockholders. In the anticipated absence of all
officers designated to preside over the meetings of stockholders, the Board of Directors may
designate an individual to preside over a meeting of the stockholders.
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B. The chairman of the meeting shall fix and announce at the meeting the date and time of the
opening and the closing of the polls for each matter upon which the stockholders will vote at a
meeting.
C. The Board of Directors may, to the extent not prohibited by law, adopt by resolution such
rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman 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 chairman, 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 chairman of the meeting,
may to the extent not prohibited by law include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iii) limitations on attendance
at or participation in the meeting to stockholders of record of the Corporation, their duly
authorized and constituted proxies or such other persons as the chairman of the meeting shall
determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (v) limitations on the time allotted to questions or comments by participants.
Unless, and to the extent, determined by the Board of Directors or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
Section 2.11 No Consent of Stockholders in Lieu of Meeting. 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.
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. In addition to the powers and
authority expressly conferred upon them by statute or by the Certificate of Incorporation or by
these Bylaws, the directors are hereby empowered to exercise all such powers and do all such acts
and things as may be exercised or done by the Corporation.
Section 3.2 Number, Tenure and Qualifications. Subject to the rights of the holders
of any series of Preferred Stock to elect additional directors under specified circumstances, the
number of directors shall be fixed from time to time exclusively by the Board of Directors pursuant
to a resolution adopted by a majority of the Whole Board. The directors, other than those who may
be elected by the holders of any series of Preferred Stock under specified circumstances, shall be
divided into three classes pursuant to the Certificate of Incorporation. At each annual meeting of
stockholders, directors elected to succeed those directors whose terms expire shall be elected for
a term of office to expire at the third succeeding annual meeting of stockholders after their
election.
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Section 3.3 Regular Meetings. The Board of Directors may, by resolution, provide the
time and place for the holding of regular meetings of the Board of Directors.
Section 3.4 Special Meetings. Special meetings of the Board of Directors shall be
called at the request of the Chairman of the Board, the Chief Executive Officer or a majority of
the Board of Directors. The person or persons authorized to call special meetings of the Board of
Directors may fix the place and time of the meetings.
Section 3.5 Action By Unanimous Consent of Directors. The Board of Directors may take
action without the necessity of a meeting by unanimous consent of directors. Such consent may be
in writing or given by electronic transmission, as such term is defined in the Delaware General
Corporation Law.
Section 3.6 Notice. Notice of any special meeting shall be given to each director at
his business or residence in writing, or by telegram, facsimile transmission, telephone
communication or electronic transmission (provided, with respect to electronic transmission, that
the director has consented to receive the form of transmission at the address to which it is
directed). If mailed, such notice shall be deemed adequately delivered when deposited in the
United States mails so addressed, with postage thereon prepaid, at least five (5) days before such
meeting. If by telegram, such notice shall be deemed adequately delivered when the telegram is
delivered to the telegraph company at least twenty-four (24) hours before such meeting. If by
facsimile transmission or other electronic transmission, such notice shall be transmitted at least
twenty-four (24) hours before such meeting. If by telephone, the notice shall be given at least
twelve (12) hours prior to the time set for the meeting. 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, except for amendments to these Bylaws as provided under Section 8.1 of
Article VIII hereof. A meeting may be held at any time without notice if all the directors are
present (except as otherwise provided by law) or if those not present waive notice of the meeting
in writing or by electronic transmission, either before or after such meeting.
Section 3.7 Conference Telephone Meetings. Members of the Board of Directors, or any
committee thereof, may participate in a meeting of the Board of Directors or such committee by
means of conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.8 Quorum. A whole number of directors equal to at least a majority of the
Whole Board shall constitute a quorum for the transaction of business, but if at any meeting of the
Board of Directors there shall be less than a quorum present, a majority of the directors present
may adjourn the meeting from time to time without further notice. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act of the Board of
Directors.
Section 3.9 Vacancies. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause shall, unless
8
otherwise provided by law or by resolution of the Board of Directors, be filled only by a
majority vote of the directors then in office, though less than a quorum (and not by stockholders),
and directors so chosen shall hold office for a term expiring at the annual meeting of stockholders
at which the term of office of the class to which they have been chosen expires or until such
director’s successor shall have been duly elected and qualified. No decrease in the authorized
number of directors shall shorten the term of any incumbent director.
Section 3.10 Committees.
A. The Board of Directors may designate one or more committees, each committee to consist of
one or more of the directors of the Corporation. The Board of Directors 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. In the absence or disqualification of a member of the committee,
the member or members thereof present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified member. Any such
committee, to the extent permitted by law and to the extent provided in the resolution of the Board
of Directors, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; provided, however, that no committee
shall have power or authority in reference to the following matters: (1) approving, adopting or
recommending to stockholders any action or matter required by law to be submitted to stockholders
for approval; or (2) adopting, amending or repealing any bylaw.
B. Unless the Board of Directors otherwise provides, each committee designated by the Board of
Directors may make, alter and repeal rules for the conduct of its business. In the absence of such
rules, each committee shall conduct its business in the same manner as the Board of Directors
conducts its business pursuant to these Bylaws.
Section 3.11 Removal. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any director, or the entire Board of Directors, may be removed from office
at any time, but only for cause and only by the affirmative vote of the holders of at least a
majority of the voting power of all of the then-outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting together as a single
class.
ARTICLE IV
OFFICERS
Section 4.1 Elected Officers. The elected officers of the Corporation shall be a
Chairman of the Board, a Chief Executive Officer and President, a Secretary, a Treasurer and such
other officers as the Board of Directors from time to time may deem proper. The Chairman of the
Board shall be chosen from the directors. All officers chosen by the Board of Directors shall each
have such powers and duties as generally pertain to their respective offices, subject to
9
the specific provisions of this Article IV. Such officers shall also have powers and duties
as from time to time may be conferred by the Board of Directors or by any committee thereof.
Section 4.2 Election and Term of Office. The elected officers of the Corporation
shall be elected annually by the Board of Directors at the regular meeting of the Board of
Directors held after each annual meeting of the stockholders. If the election of officers shall
not be held at such meeting, such election shall be held as soon thereafter as convenient. Subject
to Section 4.7 of these Bylaws, each officer shall hold office until his successor shall have been
duly elected and shall have qualified or until his death or until he shall resign.
Section 4.3 Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the Board.
Section 4.4 Chief Executive Officer and President. The Chief Executive Officer and
President shall be the general manager of the Corporation, subject to the control of the Board of
Directors, and as such shall, subject to Section 2.10 (A) hereof, preside at all meetings of
stockholders, shall have general supervision of the affairs of the Corporation, shall sign or
countersign or authorize another officer to sign all certificates, contracts, and other instruments
of the Corporation as authorized by the Board of Directors, shall make reports to the Board of
Directors and stockholders, and shall perform all such other duties as are incident to such office
or are properly required by the Board of Directors. If the Board of Directors creates the office
of Chief Executive Officer as a separate office from President, (i) the President shall be the
chief operating officer of the Corporation and shall be subject to the general supervision,
direction and control of the Chief Executive Officer, unless the Board of Directors provides
otherwise, and (iii) expect for this Section 4.4, all references herein to the “President” shall be
deemed to refer to the Chief Executive Officer.
Section 4.5 Secretary. The Secretary shall give, or cause to be given, notice of all
meetings of stockholders and directors and all other notices required by law or by these Bylaws,
and in case of his absence or refusal or neglect so to do, any such notice may be given by any
person thereunto directed by the Chairman of the Board, the Chief Executive Officer, the President
or by the Board of Directors, upon whose request the meeting is called as provided in these Bylaws.
He shall record all the proceedings of the meetings of the Board of Directors, any committees
thereof and the stockholders of the Corporation in a book to be kept for that purpose, and shall
perform such other duties as may be assigned to him by the Board of Directors, the Chairman of the
Board, the Chief Executive Officer or the President. He shall have custody of the seal of the
Corporation and shall affix the same to all instruments requiring it, when authorized by the Board
of Directors, the Chairman of the Board, the Chief Executive Officer or the President, and attest
to the same.
Section 4.6 Treasurer. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate receipts and disbursements in books belonging to
the Corporation. The Treasurer shall deposit all moneys and other valuables in the name and to the
credit of the Corporation in such depositaries as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors
the Chairman of the Board, the Chief Executive Officer or the President, taking proper vouchers for
such disbursements. The Treasurer shall render to the Chairman of
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the Board, the Chief Executive Officer, the President and the Board of Directors, whenever
requested, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
bond for the faithful discharge of his duties in such amount and with such surety as the Board of
Directors shall prescribe.
Section 4.7 Removal. Any officer elected by the Board of Directors may be removed by
the Board of Directors whenever, in their judgment, the best interests of the Corporation would be
served thereby. No elected officer shall have any contractual rights against the Corporation for
compensation by virtue of such election beyond the date of the election of his successor, his
death, his resignation or his removal, whichever event shall first occur, except as otherwise
provided in an employment contract or an employee plan.
Section 4.8 Vacancies. A newly created office and a vacancy in any office because of
death, resignation, or removal may be filled by the Board of Directors for the unexpired portion of
the term at any meeting of the Board of Directors.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
Section 5.1 Stock Certificates and Transfers.
A. Unless the Board of Directors has determined that some or all of any or all classes or
series of stock shall be uncertificated shares, the interest of each stockholder of the Corporation
shall be evidenced by certificates for shares of stock. The shares of the stock of the Corporation
shall be transferred on the books of the Corporation by the holder thereof in person or by his
attorney, upon surrender for cancellation of certificates for the same number of shares, with an
assignment and power of transfer endorsed thereon or attached thereto, duly executed, and with such
proof of the authenticity of the signature as the Corporation or its agents may reasonably require.
B. Every holder of stock represented by certificates shall be entitled to have a certificate
signed by, or in the name of the Corporation by the Chairman or Vice Chairman of the Board of
Directors, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation representing the number of shares
registered in certificate form. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date of issue.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or proceeding,
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whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by
reason of the fact that he or she is or was a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit plan (hereinafter
an “indemnitee”), where the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than permitted prior
thereto), against all expense, liability and loss (including attorneys’ fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee
who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the
indemnitee’s heirs, executors and administrators; provided, however, that, except
as provided in Section 6.3 hereof with respect to proceedings to enforce rights to indemnification,
the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation.
Section 6.2 Right to Advancement of Expenses. The right to indemnification conferred
in Section 6.1 shall include the right to be paid by the Corporation the expenses incurred in
defending any proceeding for which such right to indemnification is applicable in advance of its
final disposition (hereinafter an “advancement of expenses”); provided, however,
that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an
indemnitee in his or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled
to be indemnified for such expenses under this Section or otherwise.
Section 6.3 Right of Indemnitee to Bring Suit. The rights to indemnification and to
the advancement of expenses conferred in Section 6.1 and Section 6.2, respectively, shall be
contract rights. If a claim under Section 6.1 or Section 6.2 is not paid in full by the
Corporation within sixty days after a written claim has been received by the Corporation, except in
the case of a claim for an advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in
a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (A) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (B) in any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall
be entitled to recover such expenses upon a final adjudication that, the indemnitee has not
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met any applicable standard for indemnification set forth in the Delaware General Corporation
Law. Neither the failure of the Corporation (including its directors who are not parties to such
action, a committee of such directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that indemnification of the indemnitee
is proper in the circumstances because the indemnitee has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation
(including its directors who are not parties to such action, a committee of such directors,
independent legal counsel, or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met the applicable
standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such
suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled
to be indemnified, or to such advancement of expenses, under this Section 6.3 or otherwise shall be
on the Corporation.
Section 6.4 Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article VI shall not be exclusive of any other right
which any person may have or hereafter acquire under the Certificate of Incorporation, these
Amended and Restated Bylaws, or any statute, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 6.5 Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.
Section 6.6 Indemnification Following a Change of Control. Notwithstanding any other
provision contained herein, if the Corporation shall be subject to a Change of Control (as
hereinafter defined), the additional provisions of this Section 6.6 shall apply.
A. In the event that the Corporation denies a claimant’s entitlement to indemnification and,
within two years prior to the date of the commencement of the proceeding for which indemnification
is claimed, a Change of Control shall have occurred, then the claimant shall have the right to
select an Independent Counsel (as hereinafter defined) to make the determination with respect to
such claimant’s entitlement to indemnification, such decision to be binding upon the Corporation
unless the Independent Counsel so selected does not meet the requirements of “Independent Counsel”
as defined in this Section 6.6.
B. If, following a Change of Control, any judicial proceeding is commenced to challenge a
determination that a claimant is not entitled to indemnification or that expenses or claims have
not been timely paid in full by the Corporation, then the Corporation shall have the burden of
proving that the claimant is not entitled to indemnification and/or the reimbursement of such
expenses or claims.
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C. If, following a Change of Control, the person, persons or entity empowered or selected
under this Article VI to determine whether the claimant is entitled to indemnification shall not
have made a determination within ninety (90) days after receipt by the Corporation of the request
therefor, the requisite determination of entitlement to indemnification shall be deemed to have
been made and the claimant shall be entitled to such indemnification, absent (i) a misstatement by
the claimant of a material fact, or an omission of a material fact necessary to make the claimant’s
statement(s) not materially misleading, in connection with the request for indemnification or
(ii) a prohibition of such indemnification under applicable law.
D. For the purposes of this Article VI:
“Change of Control” shall mean:
(1) the acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act (a “Person”)), directly or indirectly, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the Corporation (the “Outstanding
Corporation Common Stock”) or (ii) the combined voting power of the then outstanding voting
securities of the Corporation entitled to vote generally in the election of directors (the
“Outstanding Corporation Voting Securities”); provided, however, that for purposes of this part
(1), the following acquisitions shall not constitute a Change of Control: (i) any acquisition
directly from the Corporation or any acquisition from other stockholders where (A) such acquisition
was approved in advance by the Board of Directors of the Corporation and (B) such acquisition would
not constitute a Change of Control under part (2) or part (4) of this definition, (ii) any
acquisition by the Corporation, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any corporation controlled by the Corporation,
or (iv) any acquisition by any corporation pursuant to a transaction that complies with clauses
(i), (ii) and (iii) of part (4) of this definition;
(2) individuals who, as of the date hereof, constitute the Board of Directors of the
Corporation (the “Incumbent Board”) cease for any reason to constitute at least a majority of the
Board of Directors of the Corporation; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the stockholders, was
approved by a vote of at least a majority of the directors then comprising the Incumbent Board (or
such committee thereof that shall then have the authority to nominate persons for election as
directors) shall be considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies of consents by or on behalf of a
Person other than the Board of Directors of the Corporation; or
(3) consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Corporation (a “Business
Combination”), in each case, unless, immediately following such Business Combination, (i) all or
substantially all of the individuals and entities who were the beneficial owners, respectively, of
the Outstanding Corporation Common Stock and Outstanding Corporation Voting Securities immediately
prior to such Business Combination beneficially own, directly or indirectly, more than 50% of,
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respectively, the then outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of directors, as the case
may be, of the Corporation resulting from such Business Combination (including, without limitation,
a corporation that as a result of such transaction owns the Corporation or all or substantially all
of the Corporation’s assets either directly or through one or more subsidiaries) in substantially
the same proportions as their ownership, immediately prior to such Business Combination of the
Outstanding Corporation Common Stock and Outstanding Corporation Voting Securities, as the case may
be, (ii) no Person (excluding any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the corporation or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such Business Combination
or the combined voting power of the then outstanding voting securities of such corporation except
to the extent that such ownership existed prior to the Business Combination, and (iii) at least a
majority of the members of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board of Directors of the Corporation, providing for such
Business Combination.
“Independent Counsel” shall mean a law firm, a member of a law firm, or an independent
practitioner, that is experienced in matters of corporation law and neither presently is, nor in
the past five years has been, retained to represent: (i) the Corporation or the claimant in any
matter material to any such party, or (ii) any other party to the proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall
not shall include any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Corporation or the
claimant in an action to determine the claimant’s rights under this Article VI.
Section 6.7 Amendment of Rights. The rights and protections provided by this Section
VI are contract rights that vest upon an individual’s election as a director. No amendment,
alteration or repeal of this Article VI shall adversely affect any right or protection of an
indemnitee or its successors afforded by this Section VI with respect to any proceeding involving
any action or omission to act that took place prior to such amendment, alteration or repeal.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 Fiscal Year. The fiscal year of the Corporation shall begin on the first
day of January and end on the thirty-first day of December of each year.
Section 7.2 Dividends. The Board of Directors may from time to time declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law and its Certificate of Incorporation.
Section 7.3 Seal. The corporate seal shall have inscribed the name of the Corporation
thereon and shall be in such form as may be approved from time to time by the Board of Directors.
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Section 7.4 Waiver of Notice. Whenever any notice is required to be given to any
stockholder or director of the Corporation under the provisions of the Delaware General Corporation
Law, a waiver thereof in writing, signed by the person or persons entitled to such notice, or a
waiver by electronic transmission, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose
of, any annual or special meeting of the stockholders of the Board of Directors need be specified
in any waiver of notice of such meeting.
Section 7.5 Audits. The accounts, books and records of the Corporation shall be
audited upon the conclusion of each fiscal year by an independent certified public accountants
selected by the Board of Directors, and it shall be the duty of the Board of Directors to cause
such audit to be made annually.
Section 7.6 Resignations. Any director or any officer, whether elected or appointed,
may resign at any time by serving written notice of such resignation on the Chairman of the Board,
the Chief Executive Officer or the Secretary, or by submitting such resignation by electronic
transmission (as such term is defined in the Delaware General Corporation Law), and such
resignation shall be deemed to be effective as of the close of business on the date said notice is
received by the Chairman of the Board, the Chief Executive Officer, or the Secretary or at such
later date as is stated therein. No formal action shall be required of the Board of Directors or
the stockholders to make any such resignation effective.
Section 7.7 Contracts. Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, any contracts or other instruments may be executed and delivered in
the name and on the behalf of the Corporation by such officer or officers of the Corporation as the
Board of Directors may from time to time direct. Such authority may be general or confined to
specific instances as the Board may determine. The Chairman of the Board, the Chief Executive
Officer, the President or any Vice President may execute bonds, contracts, deeds, leases and other
instruments to be made or executed for or on behalf of the Corporation. Subject to any
restrictions imposed by the Board of Directors or the Chairman of the Board, the Chief Executive
Officer, the President or any Vice President of the Corporation may delegate contractual powers to
others under his jurisdiction, it being understood, however, that any such delegation of power
shall not relieve such officer of responsibility with respect to the exercise of such delegated
power.
Section 7.8 Proxies. Unless otherwise provided by resolution adopted by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer, the President or any Vice
President may from time to time appoint any attorney or attorneys or agent or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes which the Corporation
may be entitled to cast as the holder of stock or other securities in any other corporation or
other entity, any of whose stock or other securities may be held by the Corporation, at meetings of
the holders of the stock and other securities of such other corporation or other entity, or to
consent in writing, in the name of the Corporation as such holder, to any action by such other
corporation or other entity, and may instruct the person or persons so appointed as to the manner
of casting such votes or giving such consent, and may execute or cause to be executed in the name
and on behalf of the Corporation and under its corporate seal or
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otherwise, all such written proxies or other instruments as he may deem necessary or proper in
the premises.
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments. Subject to the provisions of the Certificate of
Incorporation, these Bylaws may be adopted, amended or repealed at any meeting of the Board of
Directors by a resolution adopted by a majority of the Whole Board, provided notice of the proposed
change was given in the notice of the meeting in a notice given no less than twenty-four (24) hours
prior to the meeting. Subject to the provisions of the Certificate of Incorporation, the
stockholders shall also have the power to adopt, amend or repeal these Bylaws, provided that notice
of the proposed change was given in the notice of the meeting and provided further that, in
addition to any vote of the holders of any class or series of stock of the Corporation required by
law or by the Certificate of Incorporation, the affirmative vote of the holders of at least eighty
percent (80%) of the voting power of all of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting together as a single
class, shall be required to adopt, amend or repeal any provision of these Bylaws.
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