UNITED STATES
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
Date of Report (Date of earliest event reported): July 16,
2015
PARK PLACE ENERGY CORP.
(Exact Name of Registrant as Specified in its Charter)
Nevada |
000-51712 |
71-0971567 |
(State or other |
(Commission File Number) |
(IRS Employer |
jurisdiction |
|
Identification No.) |
of incorporation) |
|
|
2200 Ross Ave., Suite 4500E |
|
Dallas, TX USA |
75201 |
(Address of principal executive offices) |
(Zip Code) |
Registrants telephone number, including area code: (214)
220-4340
N/A
(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:
[X] 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))
Item
1.01 Entry into a Material Definitive
Agreement.
On
July 16, 2015, Park Place Energy Corp., a Nevada corporation (PPEC) entered
into an Agreement and Plan of Merger (the Plan of Merger) with a newly formed,
wholly-owned Nevada subsidiary, PPEC Merger Corp. (Merger Sub), and a newly
formed, wholly-owned Delaware subsidiary, Park Place Energy Inc. (Hold Co.),
pursuant to which PPEC will be merged with Merger Sub and will become a
wholly-owned subsidiary of Hold Co. for the sole purpose of causing Hold Co. to
become the holding company of PPEC. The merger is subject to a number of
conditions, including the approval of the Plan of Merger by the stockholders of
PPEC. In due course, PPEC intends to submit a proxy statement to the Securities
and Exchange Commission for the purpose of soliciting proxies for that purpose.
It is Hold Co.s intention to file a Registration Statement on Form S-4 relating
to this transaction in the near future. The Registration Statement will form the
principal content of the proxy statement.
A copy of the Plan of Merger is attached hereto as Exhibit 2.1.
The
formation of the holding company will not result in any material change in the
business, management, fiscal year, accounting, location of the principal
executive officers, assets or liabilities of PPEC. In addition, PPEC expects
that Hold Co.s common stock will trade on the OTCQB market under the symbol
PKPL and that Hold Co. will be able to use the same CUSIP number as currently
used by PPEC. Shareholders will not be required to exchange certificates
representing PPEC shares in connection with the formation of the holding
company.
Additional
information about the formation of the holding company and a comparison of the
rights of stockholders of PPEC prior to and following the transaction will be
contained in the definitive proxy statement that will be distributed to
stockholders in connection with the solicitation of their vote on the
transactions, and to be filed with the Securities and Exchange Commission. The
description of the Agreement and Plan of Merger, the Delaware Certificate of
Incorporation and the Bylaws of Hold Co. above and such portions of the proxy
statement are qualified in their entirety by reference to the full text of such
documents, all of which will be contained in the proxy statement.
It
is Hold Co.s intention to file a Registration Statement on Form S-4 relating to
this transaction in the near future. The Registration Statement will form the
principal content of the proxy statement.
Item 3.03 Material
Modification to Rights of Security Holders.
Please see the disclosure set forth under Item 1.01, which is incorporated by
reference into this Item 3.03.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
SIGNATURES
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.
PARK PLACE ENERGY CORP.
Dated: July 16, 2015 |
By: |
/s/
Francis M. Munchinski |
|
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Name: Francis M. Munchinski |
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Title: Secretary and Treasurer
|
EXHIBIT INDEX
AGREEMENT AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER (this Agreement ), dated as of July
16, 2015, is among PARK PLACE ENERGY CORP., a Nevada corporation
(PPEC), PPEC MERGER CORP., a Nevada corporation and an indirect
wholly-owned subsidiary of PPEC (Merger Sub), and PARK PLACE
ENERGY INC., a Delaware corporation and a wholly-owned subsidiary of PPEC and
the parent of Merger Sub (Hold Co.). PPEC, Merger Sub, and Hold
Co. are sometimes collectively referred to as Parties and
individually referred to as a Party.
RECITALS
A.
The Board of Directors of PPEC has determined that it would be advisable and in
the best interests of PPEC and its shareholders for PPEC to undergo a corporate
reorganization under which (i) PPEC would become a wholly-owned subsidiary of a
newly formed Delaware corporation, and (ii) the shareholders of PPEC would
become shareholders of the newly formed Delaware corporation as a result of the
conversion of the shares of PPEC into the same number of shares in the newly
formed Delaware corporation.
B.
To facilitate such corporate reorganization, prior to execution of this
Agreement, PPEC has caused the creation of (i) Hold Co. as a wholly-owned
subsidiary of PPEC, and (ii) Merger Sub as a wholly-owned subsidiary of Hold Co.
C.
Pursuant to the terms of this Agreement, (i) Merger Sub will merge with and into
PPEC, and PPEC will be the surviving corporation and become a wholly-owned
subsidiary of Hold Co., and (ii) the shareholders of PPEC will become
shareholders of Hold Co.
D.
The form, terms and provisions of this Agreement have been authorized, approved
and adopted by the Board of Directors of PPEC and the shareholders of Merger Sub
and Hold Co.
In
consideration of the premises and the mutual agreements and covenants herein
contained and in accordance with the applicable provisions of the General
Corporation Law of Delaware (the DGCL) and the Nevada Revised
Statutes (the NRS), the Parties agree and covenant as follows:
ARTICLE I
TERMS AND CONDITIONS OF MERGER;
EFFECTIVE TIME
1.1.
Terms and Conditions of Merger. Upon the terms and subject to the
conditions set forth in this Agreement, at the Effective Time (as defined
below), Merger Sub shall be merged with and into PPEC (the
Merger). As a result of the Merger, (i) the separate existence
of Merger Sub and PPEC shall cease and PPEC shall be the surviving corporation
(sometimes referred to as the Surviving Corporation); (ii) all
capital stock of PPEC shall be converted into capital stock of Hold Co. in
accordance with the provisions of Article VI below, such that the
shareholders of PPEC before the Merger will become shareholders of Hold Co.
immediately following the Merger; and (iii) PPEC shall thereafter continue to be
governed by the laws of the State of Nevada and shall be a wholly-owned
subsidiary of Hold Co. as a result of Hold Co.s ownership of all of the issued
and outstanding capital stock of Merger Sub immediately prior to the Merger. The
Merger shall have the effects specified in the NRS and the DGCL and the
Surviving Corporation shall succeed, without other transfer, to all of the
assets and property (whether real, personal or mixed), rights, privileges,
franchises, immunities and powers of PPEC, and shall assume and be subject to
all of the duties, liabilities, obligations and restrictions of every kind and
description of PPEC, including, without limitation, all outstanding indebtedness
of PPEC.
1.2.
Effective Time. The date and hour on which the Merger occurs and becomes
effective is hereinafter referred to as the Effective Time. The
Merger shall be effective upon the latest to occur of: (i) the filing of
Articles of Merger with the Secretary of State of the State of Nevada in
accordance with the relevant provisions of the NRS, and (ii) the filing of a
Certificate of Merger with the Secretary of State of Delaware in accordance with
the relevant provisions of the DGCL, which shall take place as soon as
practicable following the approval and/or adoption, as applicable, of this
Agreement by the shareholder and directors of Merger Sub and the requisite
shareholders and the directors of PPEC and compliance with Section 14(a) of the
Securities Exchange Act of 1934, as amended.
ARTICLE II
CHARTER AND BYLAWS OF THE SURVIVING
CORPORATION
2.1.
The Certificate of Incorporation. The certificate of incorporation of
PPEC in effect at the Effective Time shall be the certificate of incorporation
of the Surviving Corporation, until amended in accordance with the provisions
provided therein or applicable law.
2.2.
The Bylaws. The bylaws of PPEC in effect at the Effective Time shall be
the bylaws of the Surviving Corporation, until amended in accordance with the
provisions provided therein or applicable law.
ARTICLE III
OFFICERS AND DIRECTORS OF THE
SURVIVING CORPORATION
3.1.
Officers. The officers of Merger Sub immediately prior to the Effective
Time shall, from and after the Effective Time, be the officers of the Surviving
Corporation, until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal.
3.2.
Directors. The directors of Merger Sub immediately prior to the Effective
Time shall, from and after the Effective Time, be the directors of the Surviving
Corporation, until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal.
ARTICLE IV
CHARTER AND BYLAWS OF HOLD CO.
4.1.
The Certificate of Incorporation. The certificate of incorporation of
Hold Co. in effect at the Effective Time, a copy of which is attached hereto as
Exhibit A, shall be the certificate of incorporation of Hold Co. until
amended in accordance with the provisions provided therein or applicable law.
4.2.
The Bylaws. The bylaws of Hold Co. in effect at the Effective Time shall
be replaced with a new set of bylaws, the form and substance of which are
attached thereto as Exhibit B, until amended in accordance with the
provisions provided therein or applicable law.
ARTICLE V
OFFICERS AND DIRECTORS OF HOLD CO.
5.1.
Officers. The officers of PPEC immediately prior to the Effective Time
shall, from and after the Effective Time, be the officers of Hold Co., until
their successors have been duly elected or appointed and qualified or until
their earlier death, resignation or removal.
5.2.
Directors. The directors of PPEC immediately prior to the Effective Time
shall, from and after the Effective Time, be the directors of Hold Co., until
their successors have been duly elected or appointed and qualified or until
their earlier death, resignation or removal.
ARTICLE VI
STOCK AND STOCK CERTIFICATES
6.1.
Effect of Merger on PPEC Stock. At the Effective Time, as a result of the
Merger and without any action on the part of PPEC, Merger Sub, Hold Co. or the
shareholders of any of them:
(a)
Each share of common stock of PPEC (the PPEC Common Stock)
outstanding immediately prior to the Effective Time (excluding shares held by
shareholders who perfect their dissenters rights as provided in paragraph (d)
of this section) shall be automatically converted (without the surrender of
stock certificates or any other action) into one fully paid and non-assessable
share of common stock (the Hold Co. Common Stock) of Hold Co.
(the Merger Consideration), and all PPEC Common
Stock shall be automatically cancelled and retired and shall cease to exist, and
each holder of a certificate that immediately prior to the Effective Time
represented any such shares of PPEC Common Stock (each, a
Certificate) shall cease to have any rights with respect
thereto, except the right to receive the Merger Consideration and the rights set
forth in Section 6.2. The right of any holder of a Certificate to receive the Merger
Consideration shall be subject to and reduced by the amount of any withholding
that is required under applicable tax law.
2
(b)
Each option, warrant or restricted stock unit (RSU) of PPEC
issued and outstanding immediately prior to the Effective Time shall (i) be
automatically converted into an identical security of Hold Co. (including,
without limitation, the same exercise price, vesting conditions and expiration
date) and (ii) immediately following the Effective Time, represent the right to
acquire the number of shares of Hold Co. Common Stock that is equal to the
number of shares of PPEC Common Stock acquirable upon the exercise or vesting of
such option, warrant or RSU immediately prior to the Effective Time. The same
number of shares of Hold Co. Common Stock shall be reserved for purposes of the
exercise or vesting of such options, warrants or RSUs as is equal to the number
of shares of PPEC Common Stock so reserved immediately prior to the Effective
Time.
(c)
PPECs stock option and equity incentive plans existing immediately prior to the
Effective Time shall be automatically assumed and continued as plans of Hold Co.
after the Merger.
(d)
Each share of Hold Co. Common Stock owned by PPEC outstanding immediately prior
to the Effective Time shall no longer be outstanding and shall be cancelled and
retired and shall cease to exist.
(e)
Each share of Merger Sub capital stock outstanding immediately prior to the
Effective Time shall be converted into the same number of shares of common stock
of the Surviving Corporation and, as such, shall remain outstanding and shall be
owned by Hold Co.
(f)
Any holder of shares of PPEC Common Stock who perfects his or her dissenters
rights in accordance with and as contemplated by NRS 92A.300 to 92A.500 shall be
entitled to receive the fair value of such shares in cash as determined pursuant
to Sections 92A.300 to 92A.500 of the NRS; provided, however, that no such
payment shall be made to any dissenting shareholder unless and until such
dissenting shareholder has complied with the applicable provisions of the NRS.
6.2.
Certificates. At and after the Effective Time, all of the outstanding
Certificates shall be deemed for all purposes to evidence ownership of and to
represent the respective Hold Co. Common Stock into which the shares of PPEC
Common Stock represented by such Certificates have been converted as herein
provided and shall be so registered on the books and records of Hold Co. or its
transfer agent. The registered owner of any such outstanding Certificate shall,
until such Certificate shall have been surrendered for transfer or otherwise
accounted for to Hold Co. or its transfer agent, have and be entitled to
exercise any voting and other rights with respect to, and to receive any
dividends and other distributions upon, the shares of Hold Co. Common Stock, as
the case may be, evidenced by such outstanding Certificate, as above provided.
6.3.
Other Securities Agreements. At and after the Effective Time, all of the
outstanding agreements of PPEC that immediately prior to the Effective Time
represent any option, warrant or RSU of PPEC shall be deemed for all purposes to
evidence ownership of and to represent the respective Hold Co. options,
warrants, or RSUs, as the case may be, into which the options, warrants or RSUs
of PPEC represented by such agreements have been converted as herein provided
and shall be so registered on the books and records of Hold Co. or its transfer
agent. The registered owner of any such outstanding agreement shall have and be
entitled to exercise any rights with respect to the options, warrants, or RSUs
of Hold Co., as the case may be, evidenced by such outstanding agreement, as
above provided.
ARTICLE VII
CONDITIONS
7.1
Conditions Precedent. The respective obligation of each Party to effect
the Merger is subject to the satisfaction of each of the following conditions,
or waiver thereof by mutual agreement of the Parties:
(a)
The registration statement on Form S-4 filed with the Securities and Exchange
Commission by Hold Co. in connection with the issuance of shares of Hold Co.
Common Stock in the Merger shall have become effective under the Securities Act
of 1933, as amended, and shall not be the subject of any stop order or
proceedings seeking a stop order.
(b)
The receipt by PPEC of approval of this Agreement and the transactions
contemplated hereby by the affirmative vote of at least a majority of all issued
and outstanding shares of PPEC Common Stock.
3
(c)
The receipt by PPEC of approval by PPEC stockholders of the assumption by Hold
Co. of (i) PPECs 2013 Long-Term Equity Incentive Plan (including the existing
share reserves under the plan, (ii) PPECs 2011 Stock Option Plan (including the
existing share reserves under the plan), and all the outstanding equity awards
under both plans, and (iii) PPECs outstanding warrants, which approval requires
that the number of votes cast in favor of such proposal exceeds the number of
votes cast in opposition to it.
(d)
No court or governmental entity of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any law or order (whether temporary,
preliminary or permanent) that is in effect and has a material adverse effect on
PPEC or enjoins or otherwise prohibits consummation of the transactions
contemplated by this Agreement and no judicial or administrative proceeding that
seeks any such result shall continue to be pending.
(e)
All required approvals, licenses and certifications from, and notifications and
filings to, governmental entities and non-governmental third parties shall have
been obtained or made, as applicable.
(f)
Hold Co. shall have been admitted to the OTCQB tier of the OTC Markets and the
shares of Hold Co. Common Stock issuable in the Merger pursuant to Article VI
and such other shares to be reserved for issuance in connection with the Merger
shall have been listed or admitted for quotation on the OTCQB tier of the OTC
Markets, subject only to official notice of issuance.
(g)
PPEC shall have not received valid written notice of dissent pursuant to
Sections 92A.300 to 92A.500 of the NRS with respect to more than 2.5% of the
outstanding shares of PPEC Common Stock, which notices of dissent have not been
waived or otherwise lost as of the Effective Time pursuant to Sections 92A.300
to 92A.500 of the NRS.
ARTICLE VIII
TERMINATION
8.1.
Termination. This Agreement may be terminated, and the Merger may be
abandoned, at any time prior to the Effective Time, whether before or after
approval of this Agreement by the shareholders of PPEC, if the Board of
Directors of PPEC determines for any reason, in its sole judgment and
discretion, that the consummation of the Merger would be inadvisable or not in
the best interests of PPEC and its shareholders. In the event of the termination
and abandonment of this Agreement, this Agreement shall become null and void and
have no effect, without any liability on the part of PPEC, Merger Sub or Hold
Co., or any of their respective shareholders, directors or officers.
ARTICLE IX
MISCELLANEOUS AND GENERAL
9.1.
Modification or Amendment. Subject to the provisions of applicable law,
at any time prior to the Effective Time, the Parties may modify or amend this
Agreement; provided, however, that an amendment made subsequent to the approval
of this Agreement and the Merger by the requisite shareholders of PPEC shall not
(i) alter or change the amount or kind of shares, securities, cash, property
and/or rights to be received in exchange for or on conversion of all or any of
the shares of PPEC Common Stock or other securities of PPEC or (ii) alter or
change any of the terms or conditions of this Agreement if such alteration or
change would materially and adversely affect PPEC or the holders of PPEC Common
Stock, or (iii) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger.
9.2.
Abandonment. At any time before the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware or the Articles of Merger
with the Secretary of State of the State of Nevada, this Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either PPEC or Hold Co., or both, notwithstanding the
approval of this Agreement by the stockholders of PPEC or by the sole
stockholder of Hold Co., or by both.
9.2.
Counterparts. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
9.3.
Governing Law. Except as otherwise required by the NRS, this Agreement
shall be deemed to be made in and in all respects shall be interpreted,
construed and governed by and in accordance with the laws of the State of
Delaware, without regard to the conflict of law principles thereof.
4
9.4.
Entire Agreement This Agreement constitutes the entire agreement and
supersedes all other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect to the subject
matter hereof.
9.5.
No Third Party Beneficiaries. This Agreement is not intended to confer
upon any person other than the Parties hereto any rights or remedies hereunder.
9.6.
Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof. If any provision of
this Agreement, or the application thereof to any person or any circumstance, is
determined by any court or other authority of competent jurisdiction to be
invalid or unenforceable, (i) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (ii) the remainder of this Agreement and the application of such provision
to other persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
9.7.
Headings. The headings therein are for convenience of reference only, do
not constitute part of this Agreement and shall not be deemed to limit or
otherwise affect any of the provisions hereof.
***
[Signature Page Follows]
5
This
Agreement has been executed and delivered by the authorized officers of the
Parties as of the date first written above.
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PARK PLACE ENERGY
CORP., |
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A NEVADA
CORPORATION |
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By: |
/s/ Scott C. Larsen |
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Name: |
Scott C. Larsen |
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Title: |
President and Chief Executive
Officer |
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PPEC MERGER CORP., |
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A NEVADA
CORPORATION |
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By: |
/s/ Scott C. Larsen |
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Name: |
Scott C. Larsen |
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Title: |
President |
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PARK PLACE ENERGY
INC., |
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A DELAWARE
CORPORATION |
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By: |
/s/ Scott C. Larsen |
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Name: |
Scott C. Larsen |
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Title: |
President |
6
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
PARK
PLACE ENERGY INC.
Pursuant to Section 245 of the
General Corporation Law of
the State of Delaware
I. NAME
The
name of the corporation is Park Place Energy Inc. (the Corporation).
II. REGISTERED OFFICE AND AGENT
The address of the registered office in the State of Delaware is 1675 S. State
Street, Suite B, Dover, Delaware 19901, County of Kent. The name of the
registered agent of the Corporation at such address is Capitol Services Inc.
III. PURPOSES AND STOCKHOLDER LIABILITY
A.
Purposes. The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in any lawful business, act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware (the DGCL).
B.
Stockholder Liability. The private property of the stockholders shall not
be subject to the payment of corporate debts to any extent whatsoever.
IV. AUTHORIZED CAPITAL STOCK
A.
Authorized Capital Stock. The aggregate number of shares of all classes
of stock the Corporation shall have authority to issue is 260,000,000 shares,
consisting of: (i) 250,000,000 shares of common stock, par value $.00001 per
share (the Common Stock), and (ii) 10,000,000 shares of preferred
stock, par value $.00001 per share (the Preferred Stock). Shares of any
class of capital stock of the Corporation may be issued for such consideration
and for such corporate purposes as the Board of Directors of the Corporation
(the Board of Directors) may from time to time determine. Each share of
Common Stock shall be entitled to one vote; provided, however,
that, except as otherwise required by law, holders of Common Stock shall not be
entitled to vote on any amendment to this Certificate of Incorporation (which,
as used herein, shall mean the certificate of incorporation of the Corporation,
as amended from time to time, including the terms of any certificate of
designations of any series of Preferred Stock) that relates solely to the terms
of one or more outstanding series of Preferred Stock if the holders of such
affected series are entitled, either separately or together as a class with the
holders of one or more other such series, to vote thereon pursuant to this
Certificate of Incorporation or the DGCL.
B.
Preferred Stock. The Preferred Stock may be divided into and issued from
time to time in one or more series as may be fixed and determined by the Board
of Directors. The relative rights and preferences of the Preferred Stock of each
series shall be such as shall be stated in any resolution or resolutions adopted
by the Board of Directors setting forth the designation of the series and fixing
and determining the relative rights and preferences thereof (a Directors
Resolution). The Board of Directors is hereby authorized to fix and
determine the powers, designations, preferences and relative, participating,
optional or other rights, including, without limitation, voting powers, full or
limited, preferential rights to receive dividends or assets upon liquidation,
rights of conversion or exchange into Common Stock, Preferred Stock of any
series or other securities, any right of the Corporation to exchange or convert
shares into Common Stock, Preferred Stock of any series or other securities, or
redemption provision or sinking fund provisions, as between series and as
between the Preferred Stock or any series thereof and the Common Stock, and the
qualifications, limitations or restrictions thereof, if any, all as shall be
stated in a Directors Resolution, and the shares of Preferred Stock or any
series thereof may have full or limited voting powers, or be without voting
powers, all as shall be stated in the Directors Resolution. Except where
otherwise set forth in the Directors Resolution providing for the issuance of
any series of Preferred Stock, the number of shares comprising such series may
be increased or decreased (but not below the number of shares then outstanding)
from time to time by like action of the Board of Directors. The shares of
Preferred Stock of any one series shall be identical with the other shares in
the same series in all respects except as to the dates from and after which
dividend thereon shall cumulate, if cumulative.
C.
Reacquired Shares of Preferred Stock. Shares of any series of any
Preferred Stock that have been redeemed (whether through the operation of a
sinking fund or otherwise), purchased by the Corporation, or that, if
convertible or exchangeable, have been converted into, or exchanged for, shares
of stock of any other class or classes or any evidences of indebtedness shall
have the status of authorized and unissued shares of Preferred Stock and may be
reissued as a part of the series of which they were originally a part or may be
reclassified and reissued as part of a new series of Preferred Stock or as part
of any other series of Preferred Stock, all subject to the conditions or
restrictions on issuance set forth in the Directors Resolution providing for
the issuance of any series of Preferred Stock and to any filing required by law.
D.
Increase in Authorized Preferred Stock. The number of authorized shares
of Preferred Stock may be increased or decreased by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to vote without
the separate vote of holders of Preferred Stock as a class.
V. EXISTENCE
The existence of the Corporation is to be perpetual.
VI. NO PREEMPTIVE RIGHTS
No
stockholder shall be entitled, as a matter of right, to subscribe for or acquire
additional, unissued or treasury shares of any class of capital stock of the
Corporation whether now or hereafter authorized, or any bonds, debentures or
other securities convertible into, or carrying a right to subscribe to or
acquire such shares, but any shares or other securities convertible into, or
carrying a right to subscribe to or acquire such shares may be issued or
disposed of by the Board of Directors to such persons and on such terms as in
its discretion it shall deem advisable.
VII. NO CUMULATIVE VOTING
At
each election of directors, every stockholder entitled to vote at such election
shall have the right to vote in person or by proxy the number of shares owned by
him for as many persons as there are directors to be elected and for whose
election he has a right to vote. No stockholder shall have the right to cumulate
his votes in any election of directors.
VIII. BOARD OF DIRECTORS
A.
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 authority
and powers conferred upon the Board of Directors by the DGCL or by the other
provisions of this Certificate of Incorporation, the Board of Directors is
hereby authorized and empowered to exercise all such powers and do all such acts
and things as may be exercised or done by the Corporation, subject to the
provisions of the DGCL, this Certificate of Incorporation and the Bylaws of the
Corporation (the Bylaws); provided, however, that no
Bylaws hereafter adopted by the stockholders of the Corporation, or any
amendments thereto, shall invalidate any prior act of the Board of Directors
that would have been valid if such Bylaws or amendment had not been adopted.
B.
Number, Election and Terms. The number of directors that shall constitute
the whole Board of Directors shall be fixed from time to time by the members of
the Board of Directors then in office. Each director shall hold office until the
next annual meeting of stockholders and shall serve until his successor shall
have been duly elected and qualified or until his earlier death, resignation or
removal. Election of directors need not be by written ballot.
C.
Bylaws. The Board of Directors is expressly authorized to adopt, amend or
repeal the Bylaws, or adopt new Bylaws, without any action on the part of the
stockholders, except as may be otherwise provided by applicable law or the
Bylaws.
D.
Special Meetings of Stockholders. Special meetings of stockholders for
any purpose or purposes may be called at any time only by the Board of
Directors, the chairperson of the Board of Directors, the chief executive
officer or the president (in the absence of a chief executive officer), or by a
stockholder or group of stockholders holding collectively 35% of the outstanding
shares of the common stock of the Corporation, and may not be called by any
other person or persons. Business transacted at any special meeting of
stockholders shall be limited to the purpose or purposes stated in the notice of
meeting.
8
IX. INDEMNIFICATION
A.
Mandatory Indemnification. Each person who at any time is or was a
director or officer of the Corporation, and is threatened to be or is made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, arbitrative or investigative (a
Proceeding), by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, partner, venturer, proprietor, member,
employee, trustee, agent or similar functionary of another domestic or foreign
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other for-profit or non-profit enterprise, whether the basis of
a Proceeding is an alleged action in such persons official capacity or in
another capacity while holding such office, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the DGCL, or any
other applicable law as may from time to time be in effect (but, in the case of
any amendment to such law or enactment of new law, only to the extent that such
amendment or enactment permits the Corporation to provide broader
indemnification rights than such law prior to such amendment or enactment
permitted the Corporation to provide), against all expense, liability and loss
(including, without limitation, court costs and attorneys fees, judgments,
fines, excise taxes or penalties, and amounts paid or to be paid in settlement)
actually and reasonably incurred or suffered by such person in connection with a
Proceeding, and such indemnification shall continue as to a person who has
ceased to be a director or officer of the Corporation or a director, officer,
partner, venturer, proprietor, member, employee, trustee, agent or similar
functionary of another domestic or foreign corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other for-profit
or non-profit enterprise, and shall inure to the benefit of such persons heirs,
executors and administrators. The Corporations obligations under this Section A
include, but are not limited to, the convening of any meeting, and the
consideration of any matter thereby, required by statute in order to determine
the eligibility of any person for indemnification.
B.
Advancement of Expenses. Expenses incurred by a director or officer of
the Corporation in defending a Proceeding shall be paid by the Corporation in
advance of the final disposition of such Proceeding to the fullest extent
permitted by, and only in compliance with, the DGCL or any other applicable laws
as may from time to time be in effect, including, without limitation, any
provision of the DGCL that requires, as a condition precedent to such expense
advancement, the delivery to the Corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under Section A of this Article IX or otherwise. If the DGCL or any
other applicable laws require repayment of any amounts so advanced, such
repayments shall be upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
C.
Vesting. The Corporations obligation to indemnify and to prepay expenses
under Sections A and B of this Article IX shall arise, and all rights granted to
the Corporations directors and officers or other persons hereunder shall vest,
at the time of the occurrence of the transaction or event to which a Proceeding
relates, or at the time that the action or conduct to which such Proceeding
relates was first taken or engaged in (or omitted to be taken or engaged in),
regardless of when such Proceeding is first threatened, commenced or completed.
Notwithstanding any other provision of this Certificate of Incorporation or the
Bylaws, no action taken by the Corporation, either by amendment of this
Certificate of Incorporation or the Bylaws or otherwise, shall diminish or
adversely affect any rights to indemnification or repayment of expenses granted
under Sections A and B of this Article IX that shall have become vested as
aforesaid prior to the date that such amendment or other corporate action is
effective or taken, whichever is later.
D.
Enforcement. If a claim under Section A or Section B or both Sections A
and B of this Article IX is not paid in full by the Corporation within thirty
(30) days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit in a court of competent
jurisdiction against the Corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall also be entitled to
be paid the expense of prosecuting such claim, including attorneys fees. It
shall be a defense to any such suit (other than a suit brought to enforce a
claim for expenses incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct that make it permissible under the DGCL or other applicable law to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. The failure of the Corporation (including
its Board of Directors, independent legal counsel, or stockholders) to have made
a determination prior to the commencement of such suit as to whether
indemnification is proper in the circumstances based upon the applicable
standard of conduct set forth in the DGCL or other applicable law shall neither
be a defense to the action nor create a presumption that the claimant has not
met the applicable standard of conduct. The termination of any proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in manner which such person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal Proceeding, had reasonable cause to believe that his conduct was
unlawful.
9
E.
Nonexclusive. The indemnification provided by this Article IX shall not
be deemed exclusive of any other rights to which a person seeking
indemnification may be entitled under any statute, bylaw, other provisions of
this Certificate of Incorporation, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such persons
official capacity and as to action in another capacity while holding such
office.
F.
Permissive Indemnification. The rights of indemnification and prepayment
of expenses that are conferred by Sections A and B of this Article IX may be
conferred upon any employee, consultant or agent of the Corporation if, and to
the extent, authorized by the Board for Directors.
G.
Insurance. The Corporation shall have power to purchase and maintain
insurance, at its expense, on behalf of any person who is or was a director,
officer, employee, consultant or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, partner, venturer,
proprietor, member, employee, trustee, agent or similar functionary of another
domestic or foreign corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other for-profit or non-profit
enterprise against any expense, liability or loss asserted against such person
and incurred by such person in any such capacity, or arising out of such
persons status as such, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the
provisions of this Article IX, the Bylaws, the DGCL or other applicable law.
H.
Implementing Arrangements. Without limiting the power of the Corporation
to procure or maintain insurance or other arrangement on behalf of any of the
persons as described in Section G of this Article IX, the Corporation may, for
the benefit of persons eligible for indemnification by the Corporation, (i)
create a trust fund, (ii) establish any form of self-insurance, (iii) secure its
indemnity obligation by grant of a security interest or other lien on the assets
of the Corporation, or (iv) establish a letter of credit, guaranty or surety
arrangement.
I.
Determination of Entitlement to Indemnification. Any indemnification
required or permitted pursuant to this Article IX (unless ordered by a court)
shall be made by the Corporation only as authorized in a specific case upon a
determination that indemnification of the present or former director, officer,
employee, agent or other person is proper in the circumstances because he has
met all applicable standards of conduct set forth in this Article IX and Section
145 of the DGCL or in any separate indemnification agreement between the
Corporation and any such director, officer, employee, agent or other person.
Such determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (a) by a majority vote of the
directors who are not parties to such Proceeding even though less than a quorum;
(b) by a committee of such directors designated by majority vote of such
directors, even though less than a quorum; (c) if there are no such directors,
or if such directors so direct, by independent legal counsel in a written
opinion; or (d) by the stockholders. Such determination shall be made, with
respect to any person who is not a director or officer at the time of such
determination, in the manner determined by the Board of Directors (including in
such manner as may be set forth in any general or specific action of the Board
of Directors applicable to indemnification claims by such person) or in the
manner set forth in any agreement to which such person and the Corporation are
parties.
X. LIMITED DIRECTOR LIABILITY
A.
No director of the Corporation shall be personally liable to the Corporation or
to its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that this Article X shall not eliminate or limit the
liability of a director: (i) for any breach of the directors duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL, as it may hereafter be amended from time to
time, or (iv) for any transaction from which the director derived and improper
personal benefit.
B.
If the DGCL is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended. No amendment to or repeal of this Article
X will apply to, or have any effect on, the liability or alleged liability of
any director of the Corporation for or with respect to any acts or omissions of
the director occurring prior to such amendment or repeal.
XI. BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The
Corporation shall not be governed by Section 203 of the DGCL.
10
XII. SOLE AND EXCLUSIVE FORUM SELECTION
Unless
the Corporation consents in writing to the selection of an alternative forum,
the sole and exclusive forum for (i) any derivative action or proceeding brought
on behalf of the Corporation, (ii) any action asserting a claim of breach of a
fiduciary duty owed by any director or officer or employee of the Corporation to
the Corporation or the Corporations stockholders, creditors or other
constituents, (iii) any action asserting a claim against the Corporation or any
director or officer or employee of the Corporation arising pursuant to any
provision of the DGCL or the Certificate of Incorporation or the Bylaws (in each
case, as they may be amended from time to time), or (iv) any action asserting a
claim against the Corporation or any director or officer or employee of the
Corporation governed by the internal affairs doctrine shall be a state court
located within the State of Delaware (or, if no state court located within the
State of Delaware has jurisdiction, the federal district court for the District
of Delaware).
XIII. GENERAL
A.
Changes. The Corporation reserves the right to restate this Certificate
of Incorporation and to amend, alter, change, or repeal any provision contained
in this Certificate of Incorporation in the manner now or hereafter prescribed
by law, and all rights and powers conferred herein on stockholders, directors,
and officers are subject to this reserved power.
B.
Incorporator. The name and mailing address of the incorporator is Francis
M. Munchinski, 2200 Ross Avenue, Suite 4500E, Dallas, Texas 75201.
THE
UNDERSIGNED, being the sole incorporator, for the purpose of forming a
corporation pursuant to the DGCL and the Acts amendatory thereof and
supplemental thereto, does make and file this Certificate of Incorporation,
hereby declaring and certifying that the facts stated herein are true, and
accordingly hereunto has set my hand and seal this June 19, 2015.
|
/s/Francis M. Munchinski |
|
Francis M. Munchinski |
|
Incorporator |
11
EXHIBIT B
AMENDED AND RESTATED
BYLAWS
OF
PARK PLACE ENERGY INC.
ARTICLE I - CORPORATE OFFICES
1.1 REGISTERED OFFICE.
The registered office of Park Place Energy Inc. (the
Corporation) shall be fixed in the Corporations
certificate of incorporation, as the same may be amended from time to time (the
certificate of
incorporation).
1.2 OTHER OFFICES.
The Corporations board of directors (the Board)
may at any time establish other offices at any place or places where the
Corporation is qualified to do business.
ARTICLE II - MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS.
Meetings of stockholders shall be held at any place, within or outside the State
of Delaware, designated by the Board. The Board may, in its sole discretion,
determine that a meeting of stockholders shall not be held at any place, but may
instead be held solely by means of remote communication as authorized by Section
211(a)(2) of the General Corporation Law of the State of Delaware (the
DGCL). In the absence of any such designation or
determination, stockholders meetings shall be held at the Corporations
principal executive office.
2.2 ANNUAL MEETING.
The Board shall designate the date and time of the annual meeting. At the annual
meeting, directors shall be elected and other proper business properly brought
before the meeting in accordance with Section 2.4 may be
transacted.
2.3 SPECIAL MEETING.
A special meeting of the stockholders may be called at any time by the Board,
chairperson of the Board (if one has been appointed), chief executive officer or
president (in the absence of a chief executive officer), but such special
meetings may not be called by any other person or persons. No business may be
transacted at such special meeting other than the business specified in such
notice to stockholders. Nothing contained in this paragraph of this
Section 2.3 shall be construed as limiting, fixing, or affecting
the time when a meeting of stockholders called by action of the Board may be
held.
2.4
ADVANCE NOTICE PROCEDURES FOR BUSINESS BROUGHT BEFORE A MEETING.
(a)
At an annual meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (i) brought before the meeting by the
Corporation and specified in the notice of meeting given by or at the direction
of the Board, (ii) brought before the meeting by or at the direction of the
Board or (iii) otherwise properly brought before the meeting by a stockholder
who (A) was a stockholder of record of the Corporation (and, with respect
to any beneficial owner, if different, on whose behalf such business is
proposed, only if such beneficial owner was the beneficial owner of shares of
the Corporation) both at the time of giving the notice provided for in this
Section 2.4 and at the time of the meeting, (B) is entitled to
vote at the meeting, and (C) has complied with this Section 2.4 as
to such business. Except for proposals properly made in accordance with Rule
14a-8 under the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (as so amended and inclusive of such rules
and regulations, the Exchange Act), and included
in the notice of meeting given by or at the direction of the Board, the
foregoing clause (iii) shall be the exclusive means for a stockholder to propose
business to be brought before an annual meeting of the stockholders.
Stockholders shall not be permitted to propose business to be brought before a
special meeting of the stockholders, and the only matters that may be brought
before a special meeting are the matters specified in the notice of meeting
given by or at the direction of the person calling the meeting pursuant to Section 2.3 of these bylaws. Stockholders seeking to nominate
persons for election to the Board must comply with Section 2.5 of
these bylaws, and this Section 2.4 shall not be applicable to
nominations except as expressly provided in Section 2.5 of these
bylaws.
12
(b)
Without qualification, for business to be properly brought before an annual
meeting by a stockholder, the stockholder must (i) provide Timely Notice (as
defined below) thereof in writing and in proper form to the secretary of the
Corporation (the Secretary) and (ii) provide any
updates or supplements to such notice at the times and in the forms required by
this Section 2.4. To be timely, a stockholders notice must be
delivered to, or mailed and received at, the principal executive offices of the
Corporation not less than ninety (90) days nor more than one hundred twenty
(120) days prior to the first anniversary of the preceding years annual
meeting; provided, however, that (x) if the date of the annual meeting is
more than thirty (30) days before or more than sixty (60) days after such
anniversary date or (y) with respect to the first annual meeting held after
__________, 2015 [date that is 120 days after cert of incorp is
filed], notice by the stockholder to be timely must be so delivered, or
mailed and received, not earlier than the one hundred twentieth (120th) day
prior to such annual meeting and not later than the ninetieth (90th) day prior
to such annual meeting or, if later, the tenth (10th) day following the day on
which public disclosure of the date of such annual meeting was first made (such
notice within such time periods, Timely Notice).
In no event shall any adjournment or postponement of an annual meeting or the
announcement thereof commence a new time period for the giving of Timely Notice
as described above.
(c)
To be in proper form for purposes of this Section 2.4, a
stockholders notice to the Secretary shall set forth:
(i)
As to each Proposing Person (as defined below), (A) the name and address of such
Proposing Person (including, without limitation, if applicable, the name and
address that appear on the Corporations books and records) and (B) the class or
series and number of shares of the Corporation that are, directly or indirectly,
owned of record or beneficially owned (within the meaning of Rule 13d-3 under
the Exchange Act) by such Proposing Person, except that such Proposing Person
shall in all events be deemed to beneficially own any shares of any class or
series of the Corporation as to which such Proposing Person has a right to
acquire beneficial ownership at any time in the future (the disclosures to be
made pursuant to the foregoing clauses (A) and (B) are referred to as
Stockholder Information);
13
(ii)
As to each Proposing Person, (A) any derivative, swap or other transaction or
series of transactions engaged in, directly or indirectly, by such Proposing
Person, the purpose or effect of which is to give such Proposing Person economic
risk similar to ownership of shares of any class or series of the Corporation,
including, without limitation, due to the fact that the value of such
derivative, swap or other transactions are determined by reference to the price,
value or volatility of any shares of any class or series of the Corporation, or
which derivative, swap or other transactions provide, directly or indirectly,
the opportunity to profit from any increase in the price or value of shares of
any class or series of the Corporation (Synthetic Equity
Interests), which Synthetic Equity Interests shall be disclosed
without regard to whether (x) the derivative, swap or other transactions convey
any voting rights in such shares to such Proposing Person, (y) the derivative, swap or other transactions
are required to be, or are capable of being, settled through delivery of such
shares or (z) such Proposing Person may have entered into other transactions
that hedge or mitigate the economic effect of such derivative, swap or other
transactions, (B) any proxy (other than a revocable proxy or consent given in
response to a solicitation made pursuant to, and in accordance with, Section
14(a) of the Exchange Act by way of a solicitation statement filed on Schedule
14A), agreement, arrangement, understanding or relationship pursuant to which
such Proposing Person has or shares a right to vote any shares of any class or
series of the Corporation, (C) any agreement, arrangement, understanding or
relationship, including, without limitation, any repurchase or similar so-called
stock borrowing agreement or arrangement, engaged in, directly or indirectly,
by such Proposing Person, the purpose or effect of which is to mitigate loss to,
reduce the economic risk (of ownership or otherwise) of shares of any class or
series of the Corporation by, manage the risk of share price changes for, or
increase or decrease the voting power of, such Proposing Person with respect to
the shares of any class or series of the Corporation, or which provides,
directly or indirectly, the opportunity to profit from any decrease in the price
or value of the shares of any class or series of the Corporation
(Short Interests), (D) any rights to dividends on
the shares of any class or series of the Corporation owned beneficially by such
Proposing Person that are separated or separable from the underlying shares of
the Corporation, (E) any performance related fees (other than an asset-based
fee) to which such Proposing Person is entitled, based on any increase or
decrease in the price or value of shares of any class or series of the
Corporation, or any Synthetic Equity Interests or Short Interests, if any,
(F)(x) if such Proposing Person is not a natural person, the identity of the
natural person or persons associated with such Proposing Person responsible for
the formulation of and decision to propose the business to be brought before the
meeting (such person or persons, the Responsible
Person), the manner in which such Responsible Person
was selected, any fiduciary duties owed by such Responsible Person to the equity
holders or other beneficiaries of such Proposing Person, the qualifications and
background of such Responsible Person and any material interests or
relationships of such Responsible Person that are not shared generally by any
other record or beneficial holder of the shares of any class or series of the
Corporation and that reasonably could have influenced the decision of such
Proposing Person to propose such business to be brought before the meeting, and
(y) if such Proposing Person is a natural person, the qualifications and
background of such natural person and any material interests or relationships of
such natural person that are not shared generally by any other record or
beneficial holder of the shares of any class or series of the Corporation and
that reasonably could have influenced the decision of such Proposing Person to
propose such business to be brought before the meeting, (G) any significant
equity interests or any Synthetic Equity Interests or Short Interests in any
principal competitor of the Corporation held by such Proposing Persons, (H) any
direct or indirect interest of such Proposing Person in any contract with the
Corporation, any affiliate of the Corporation or any principal competitor of the
Corporation (including, without limitation, in any such case, any employment
agreement, collective bargaining agreement or consulting agreement), (I) any
pending or threatened litigation in which such Proposing Person is a party or
material participant involving the Corporation or any of its officers or
directors, or any affiliate of the Corporation, (J) any material transaction
occurring during the prior twelve (12) months between such Proposing Person, on
the one hand, and the Corporation, any affiliate of the Corporation or any
principal competitor of the Corporation, on the other hand, (K) a summary of any
material discussions regarding the business proposed to be brought before the
meeting (x) between or among any of the Proposing Persons or (y) between or
among any Proposing Person and any other record or beneficial holder of the
shares of any class or series of the Corporation (including, without limitation,
their names) and (L) any other information relating to such Proposing Person
that would be required to be disclosed in a proxy statement or other filing
required to be made in connection with solicitations of proxies or consents by
such Proposing Person in support of the business proposed to be brought before
the meeting pursuant to Section 14(a) of the Exchange Act (the disclosures to be
made pursuant to the foregoing clauses (A) through (L) are referred to as
Disclosable Interests); provided, however,
that Disclosable Interests shall not include any such disclosures with respect
to the ordinary course business activities of any broker, dealer, commercial
bank, trust company or other nominee who is a Proposing Person solely as a
result of being the stockholder directed to
prepare and submit the notice required by these bylaws on behalf of a beneficial
owner; and
14
(iii)
As to each item of business that the stockholder proposes to bring before the
annual meeting, (A) a reasonably brief description of the business desired to be
brought before the annual meeting, the reasons for conducting such business at
the annual meeting and any material interest in such business of each Proposing
Person, (B) the text of the proposal or business (including, without limitation,
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), (C) a reasonably detailed description of
all agreements, arrangements and understandings between or among any of the
Proposing Persons or between or among any Proposing Person and any other person
or entity (including, without limitation, their names) in connection with the
proposal of such business by such stockholder, (D) 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, (E) a representation whether the Proposing Person intends
or is part of a group which intends (1) to deliver a proxy statement and/or form
of proxy to holders of at least the percentage of the Corporations outstanding
capital stock required to approve or adopt the proposal and/or (2) otherwise to
solicit proxies or votes from stockholders in support of such proposal and (F)
any other information relating to such item of business that would be required
to be disclosed in a proxy statement or other filing required to be made in
connection with solicitations of proxies in support of the business proposed to
be brought before the meeting pursuant to Section 14(a) of the Exchange Act;
provided, however, that the disclosures required by this paragraph (c)
shall not include any disclosures with respect to any broker, dealer, commercial
bank, trust company or other nominee who is a Proposing Person solely as a
result of being the stockholder directed to prepare and submit the notice
required by these bylaws on behalf of a beneficial owner.
(d)
For purposes of this Section 2.4, the term Proposing
Person shall mean (i) the stockholder providing the notice of
business proposed to be brought before an annual meeting, (ii) the beneficial
owner or beneficial owners, if different, on whose behalf the notice of the
business proposed to be brought before the annual meeting is made, (iii) any
affiliate or associate (each within the meaning of Rule 12b-2 under the Exchange
Act for the purposes of these bylaws) of such stockholder or beneficial owner,
and (iv) any other person with whom such stockholder or beneficial owner (or any
of their respective affiliates or associates) is Acting in Concert (as defined
below).
(e)
For purposes of these bylaws, a person shall be deemed to be
Acting in Concert with another person if such
person knowingly acts (whether or not pursuant to an express agreement,
arrangement or understanding) in concert with, or towards a common goal relating
to the management, governance or control of the Corporation in parallel with,
such other person where (i) each person is conscious of the other persons
conduct or intent and this awareness is an element in their decision-making
processes, and (ii) at least one additional factor suggests that such persons
intend to act in concert or in parallel, which additional factors may include,
without limitation, exchanging information (whether publicly or privately),
attending meetings, conducting discussions, or making or soliciting invitations
to act in concert or in parallel; provided, that a person shall not be
deemed to be Acting in Concert with any other person solely as a result of the
solicitation or receipt of revocable proxies or consents from such other person
in response to a solicitation made pursuant to, and in accordance with, the
Section 14(a) of the Exchange Act by way of a proxy or consent solicitation
statement filed on Schedule 14A. A person Acting in Concert with another person
shall be deemed to be Acting in Concert with any third party who is also Acting
in Concert with such other person.
(f)
A stockholder providing notice of business proposed to be brought before an
annual meeting shall further update and supplement such notice, if necessary, so
that the information provided or required to be provided in such notice pursuant
to this Section 2.4 shall be true and correct as of the record date for
determining stockholders entitled to notice of the annual meeting and as of the
date that is ten (10) business days prior to the meeting or any adjournment or
postponement thereof, and such update and supplement shall be delivered to, or
mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five
(5) business days after the record date for determining stockholders entitled to
notice of the annual meeting (in the case of the update and supplement required
to be made as of the record date), and not later than eight (8) business days
prior to the date for the meeting or, if practicable, any adjournment or
postponement thereof (and, if not practicable, on the first practicable date
prior to the date to which the meeting has been adjourned or postponed) (in the
case of the update and supplement required to be made as of ten (10) business
days prior to the meeting or any adjournment or postponement thereof).
15
(g)
Notwithstanding anything in these bylaws to the contrary, no business shall be
conducted at an annual meeting except in accordance with this Section
2.4 or Section 2.5. The presiding officer of an annual
meeting shall, if the facts warrant, determine that the business was not
properly brought before the meeting in accordance with this Section
2.4, and if he or she should so determine, he or she shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted.
(h)
The foregoing notice requirements of this Section 2.4 shall be deemed
satisfied by a stockholder with respect to business other than a nomination of a
person or persons for election to the Board if the stockholder has notified the
Corporation of his, her or its intention to present a proposal at an annual
meeting in compliance with applicable rules and regulations promulgated under
the Exchange Act and such stockholders proposal has been included in a proxy
statement that has been prepared by the Corporation to solicit proxies for such
annual meeting. Nothing in this Section 2.4 shall be deemed to
affect the rights of stockholders to request inclusion of proposals in the
Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(i)
For purposes of these bylaws, public disclosure
shall mean disclosure in a press release reported by a national news service or
in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(j)
Notwithstanding the foregoing provisions of this Section 2.4,
unless otherwise required by law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual meeting to
present proposed business, such proposed business shall not be transacted,
notwithstanding that proxies in respect of such vote may have been received by
the Corporation. For purposes of this Section 2.4, 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 annual meeting and such person must produce such writing or electronic
transmission, or a reliable reproduction of the writing or electronic
transmission, at the annual meeting.
2.5 ADVANCE NOTICE PROCEDURES FOR
NOMINATIONS OF DIRECTORS.
(a)
Nominations of any person for election to the Board at an annual meeting or at a
special meeting (but only if the election of directors is a matter specified in
the notice of meeting given by or at the direction of the person calling such
special meeting) may be made at such meeting only (i) by or at the direction of
the Board, including, without limitation, by any committee or persons appointed
by the Board, or (ii) by a stockholder who (A) was a stockholder of record of
the Corporation (and, with respect to any beneficial owner, if different, on
whose behalf such nomination is proposed to be made, only if such beneficial
owner was the beneficial owner of shares of the Corporation) both at the time of
giving the notice provided for in this Section 2.5 and at the time
of the meeting, (B) is entitled to vote at the meeting, and (C) has complied
with this Section 2.5 as to such nomination. The foregoing clause
(ii) shall be the exclusive means for a stockholder to make any nomination of a
person or persons for election to the Board to be considered by the stockholders
at an annual meeting or special meeting.
(b)
Without qualification, for a stockholder to make any nomination of a person or
persons for election to the Board at an annual meeting, the stockholder must (i)
provide Timely Notice (as defined in Section 2.4(b)) thereof in
writing and in proper form to the Secretary, and (ii) provide any updates or
supplements to such notice at the times and in the forms required by this
Section 2.5. Without qualification, if the election of directors
is a matter specified in the notice of meeting given by or at the direction of the person calling a
special meeting, then for a stockholder to make any nomination of a person or
persons for election to the Board at such special meeting, the stockholder must
(i) provide timely notice thereof in writing and in proper form to the Secretary
at the principal executive offices of the Corporation, and (ii) provide any
updates or supplements to such notice at the times and in the forms required by
this Section 2.5. To be timely, a stockholders notice for
nominations to be made at a special meeting must be delivered to, or mailed and
received at, the principal executive offices of the Corporation not earlier than
the one hundred twentieth (120th) day prior to such special meeting and not
later than the ninetieth (90th) day prior to such special meeting or, if later,
the tenth (10th) day following the day on which public disclosure (as defined in Section 2.4(i)) of the date of such special meeting was first
made. In no event shall any adjournment or postponement of an annual meeting or
special meeting or the announcement thereof commence a new time period for the
giving of a stockholders notice as described above.
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(c)
To be in proper form for purposes of this Section 2.5, a
stockholders notice to the Secretary shall set forth:
(i)
As to each Nominating Person (as defined below), the Stockholder Information (as
defined in Section 2.4(c)(i)) except that for purposes of this
Section 2.5, the term Nominating Person shall be substituted for
the term Proposing Person in all places it appears in Section
2.4(c)(i);
(ii)
As to each Nominating Person, any Disclosable Interests (as defined in
Section 2.4(c)(ii), except that for purposes of this Section
2.5 the term Nominating Person shall be substituted for the term
Proposing Person in all places it appears in Section 2.4(c)(ii)
and the disclosure in clause (L) of Section 2.4(c)(ii) shall be
made with respect to the election of directors at the meeting);
(iii)
As to each person whom a Nominating Person proposes to nominate for election as
a director, (A) all information with respect to such proposed nominee that would
be required to be set forth in a stockholders notice pursuant to this
Section 2.5 if such proposed nominee were a Nominating Person, (B)
all information relating to such proposed nominee that is required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors in a
contested election pursuant to Section 14(a) under the Exchange Act (including,
without limitation, such proposed nominees written consent to being named in
the proxy statement as a nominee and to serving as a director if elected), (C) a
description of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings during the past three (3) years, and
any other material relationships, between or among any Nominating Person, on the
one hand, and each proposed nominee, his or her respective affiliates and
associates and any other persons with whom such proposed nominee (or any of his
or her respective affiliates and associates) is Acting in Concert (as defined in
Section 2.4(e)), on the other hand, including, without limitation,
all information that would be required to be disclosed pursuant to Item 404
under Regulation S-K if such Nominating Person were the registrant for
purposes of such rule and the proposed nominee were a director or executive
officer of such registrant (the disclosures to be made pursuant to the foregoing
clauses (A) through (C) are referred to as Nominee
Information), (D) a representation that the Nominating Person 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
nomination, (E) a representation whether the Nominating Person intends or is
part of a group which intends (1) to deliver a proxy statement and/or form of
proxy to holders of at least the percentage of the Corporations outstanding
capital stock required to elect the nominee and/or (2) otherwise to solicit
proxies or votes from stockholders in support of such nomination and (F) a
completed and signed questionnaire, representation and agreement as provided in
Section 2.5(g); and
(iv)
The Corporation may require any proposed nominee to furnish such other
information (A) as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as an independent director of
the Corporation in accordance with the requirements of any applicable rules of
the Securities and Exchange Commission and any applicable policies or guidelines
adopted by the Board, or (B) that could be material to a reasonable
stockholders understanding of the independence or lack of independence of such
proposed nominee.
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(d)
For purposes of this Section 2.5, the term Nominating
Person shall mean (i) the stockholder providing the notice of the
nomination proposed to be made at the meeting, (ii) the beneficial owner or
beneficial owners, if different, on whose behalf the notice of the nomination
proposed to be made at the meeting is made, (iii) any affiliate or associate of
such stockholder or beneficial owner and (iv) any other person with whom such
stockholder or such beneficial owner (or any of their respective affiliates or
associates) is Acting in Concert.
(e)
A stockholder providing notice of any nomination proposed to be made at a
meeting shall further update and supplement such notice, if necessary, so that
the information provided or required to be provided in such notice pursuant to
this Section 2.5 shall be true and correct as of the record date
for determining stockholders entitled to notice of the meeting and as of the
date that is ten (10) business days prior to the meeting or any adjournment or
postponement thereof, and such update and supplement shall be delivered to, or
mailed and received by, the Secretary at the principal executive offices of the
Corporation not later than five (5) business days after the record date for
determining stockholders entitled to notice of the meeting (in the case of the
update and supplement required to be made as of the record date), and not later
than eight (8) business days prior to the date for the meeting or, if
practicable, any adjournment or postponement thereof (and, if not practicable,
on the first practicable date prior to the date to which the meeting has been
adjourned or postponed) (in the case of the update and supplement required to be
made as of ten (10) business days prior to the meeting or any adjournment or
postponement thereof).
(f)
Notwithstanding anything in these bylaws to the contrary, no person shall be
eligible for election as a director of the Corporation unless nominated in
accordance with this Section 2.5. The presiding officer at the
meeting shall, if the facts warrant, determine that a nomination was not
properly made in accordance with this Section 2.5, and if he or
she should so determine, he or she shall so declare such determination to the
meeting and the defective nomination shall be disregarded.
(g)
To be eligible to be a nominee for election as a director of the Corporation,
the proposed nominee must deliver (in accordance with the time periods
prescribed for delivery of notice under this Section 2.5) to the
Secretary at the principal executive offices of the Corporation a written
questionnaire with respect to the background and qualification of such proposed
nominee (which questionnaire shall be provided by the Secretary upon written
request) and a written representation and agreement (in form provided by the
Secretary upon written request) that such proposed nominee (i) is not and will
not become a party to (A) any agreement, arrangement or understanding with, and
has not given any commitment or assurance to, any person or entity as to how
such proposed nominee, if elected as a director of the Corporation, will act or
vote on any issue or question (a Voting
Commitment) that has not been disclosed to the Corporation or
(B) any Voting Commitment that could limit or interfere with such proposed
nominees ability to comply, if elected as a director of the Corporation, with
such proposed nominees fiduciary duties under applicable law, (ii) 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 that has not been disclosed to the Corporation
and (iii) in such proposed nominees individual capacity and on behalf of the
stockholder (or the beneficial owner, if different) on whose behalf the
nomination is made, would be in compliance, if elected as a director of the
Corporation, and will comply with applicable publicly disclosed corporate
governance, conflict of interest, confidentiality and stock ownership and
trading policies and guidelines of the Corporation.
(h)
In addition to the requirements of this Section 2.5 with respect
to any nomination proposed to be made at a meeting, each Nominating Person shall
comply with all applicable requirements of the Exchange Act with respect to any
such nominations.
(i)
Notwithstanding the foregoing provisions of this Section 2.5,
unless otherwise required by law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the meeting to present the proposed nomination,
such proposed nomination shall not be considered, notwithstanding that proxies
in respect of such vote may have been received by the Corporation. For purposes
of this Section 2.5, 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.
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2.6 NOTICE OF STOCKHOLDERS MEETINGS.
Unless otherwise provided by law, the certificate of incorporation or these
bylaws, the notice of any meeting of stockholders shall be sent or otherwise
given in accordance with either Section 2.7 or Section
8.1 not less than ten (10) nor more than sixty (60) days before the date
of the meeting to each stockholder entitled to vote at such meeting as of the
record date for determining the stockholders entitled to notice of the meeting.
The notice shall specify the place, if any, date and hour of the meeting, the
record date for determining the stockholders entitled to vote at the meeting (if
such date is different from the record date for stockholders entitled to notice
of the meeting), the means of remote communication, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at
such meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called.
2.7 MANNER OF GIVING NOTICE; AFFIDAVIT
OF NOTICE.
Notice of any meeting of stockholders shall be deemed given:
(a)
if mailed, when deposited in the United States mail, postage prepaid, directed
to the stockholder at such stockholders address as it appears on the
Corporations records; or
(b) if electronically transmitted as
provided in Section 8.1.
An affidavit of the Secretary or an assistant secretary of the Corporation or of
the transfer agent or any other agent of the Corporation that the notice has
been given by mail or by a form of electronic transmission, as applicable,
shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
2.8 QUORUM.
Unless otherwise provided by law, the certificate of incorporation or these
bylaws, the holders of a majority in voting power of the capital stock issued
and outstanding and entitled to vote, present in person, or by remote
communication, if applicable, or represented by proxy, shall constitute a quorum
for the transaction of business at all meetings of the stockholders. If,
however, a quorum is not present or represented at any meeting of the
stockholders, then either (a) the chairperson of the meeting or (b) a majority
in voting power of the stockholders entitled to vote thereon, present in person,
or by remote communication, if applicable, or represented by proxy, shall have
power to adjourn the meeting from time to time in the manner provided in
Section 2.9 until a quorum is present or represented. At such
adjourned meeting at which a quorum is present or represented, any business may
be transacted that might have been transacted at the meeting as originally
noticed.
2.9 ADJOURNED MEETING; NOTICE.
When a meeting is adjourned to another time or place, unless these bylaws
otherwise require, notice need not be given of the adjourned meeting if the
time, place, if any, thereof, and the means of remote communications, if any, by
which stockholders and proxy holders may be deemed to be present in person and
vote at such adjourned meeting are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact any
business which might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date for determining the stockholders entitled to vote is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned
meeting as of the record date for determining the stockholders entitled to
notice of the adjourned meeting.
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2.10 CONDUCT OF BUSINESS.
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 shall be announced at the
meeting by the person presiding over the meeting. The Board may 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, the person presiding
over any meeting of stockholders shall have the right and authority to convene
and (for any or no reason) to recess and/or adjourn the meeting, to prescribe
such rules, regulations and procedures (which need not be in writing) and to do
all such acts as, in the judgment of such presiding person, are appropriate for
the proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board or prescribed by the presiding person of the
meeting, may include, without limitation, the following: (a) the establishment
of an agenda or order of business for the meeting; (b) rules and procedures for
maintaining order at the meeting and the safety of those present (including,
without limitation, rules and procedures for removal of disruptive persons from
the meeting); (c) limitations on attendance at or participation in the meeting
to stockholders entitled to vote at the meeting, their duly authorized and
constituted proxies or such other persons as the presiding person of the meeting
shall determine; (d) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (e) limitations on the time allotted to
questions or comments by participants, and the number of any such questions or
comments from each participant. The presiding person at any meeting of
stockholders, in addition to making any other determinations that may be
appropriate to the conduct of the meeting (including, without limitation,
determinations with respect to the administration and/or interpretation of any
of the rules, regulations or procedures of the meeting, whether adopted by the
Board or prescribed by the person presiding over the meeting), shall, if the
facts warrant, determine and declare to the meeting that a matter or business
was not properly brought before the meeting and if such presiding person should
so determine, such presiding person shall so declare to the meeting and any such
matter or business not properly brought before the meeting shall not be
transacted or considered. Unless and to the extent determined by the Board or
the person presiding over the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
2.11 VOTING.
The stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of Section 2.13,
subject to Section 217 (relating to voting rights of fiduciaries, pledgors and
joint owners of stock) and Section 218 (relating to voting trusts and other
voting agreements) of the DGCL.
Except as may be otherwise provided in the certificate of incorporation or these
bylaws, each stockholder shall be entitled to one (1) vote for each share of
capital stock held by such stockholder.
At all duly called or convened meetings of stockholders, at which a quorum is
present, for the election of directors, a plurality of the votes cast shall be
sufficient to elect a director. Except as otherwise provided by the certificate
of incorporation, these bylaws, the rules or regulations of any stock exchange
applicable to the Corporation, or applicable law or pursuant to any regulation
applicable to the Corporation or its securities, all other elections and
questions presented to the stockholders at a duly called or convened meeting, at
which a quorum is present, shall be decided by the affirmative vote of the
holders of a majority in voting power of the votes cast affirmatively or
negatively (excluding abstentions) at the meeting by the holders entitled to
vote thereon.
2.12 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT
A MEETING.
(a)
Any action required by the DGCL, the certificate of incorporation or these
bylaws to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, if:
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(i)
In advance of action, the Board shall determine that the action may be taken by
consent of the stockholders and the Corporation provides written notice to the
stockholders of the action to be taken; and
(ii)
A consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
shall be delivered to the Corporation by delivery to its principal place of
business.
(b)
If the action taken pursuant to paragraph (a) of this section is to elect
directors and such written consent is less than unanimous, such action by
written consent may be in lieu of holding an annual meeting only if all of the
directorships to which directors could be elected at an annual meeting held at
the effective time of such action are vacant and are filled by such action.
(c)
Every written consent shall bear the date of signature of each stockholder who
signs the consent, and no written consent shall be effective to take the
corporate action referred to therein unless, within 60 days of the earliest
dated consent delivered in the manner required by this section to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its principal place of
business. Any person executing a consent may provide, whether through
instruction to an agent or otherwise, that such a consent will be effective at a
future time (including a time determined upon the happening of an event), no
later than 60 days after such instruction is given or such provision is made,
and, for the purposes of this section, if evidence of such instruction or
provision is provided to the Corporation, such later effective time shall serve
as the date of signature. Unless otherwise provided, any such consent shall be
revocable prior to its becoming effective.
(d)
Any electronic transmission consenting to an action to be taken and transmitted
by a stockholder, member or proxyholder, or by a person or persons authorized to
act for a stockholder, member or proxyholder, shall be deemed to be written,
signed and dated for the purposes of this section, provided that any such
electronic transmission sets forth or is delivered with information from which
the Corporation can determine (A) that the electronic transmission was
transmitted by the stockholder, member or proxyholder or by a person or persons
authorized to act for the stockholder, member or proxyholder and (B) the date on
which such stockholder, member or proxyholder or authorized person or persons
transmitted such electronic transmission. The date on which such electronic
transmission is transmitted shall be deemed to be the date on which such consent
was signed. No consent given by electronic transmission shall be deemed to have
been delivered until such consent is delivered to the Corporation by delivery to
the address designated by the Board or the officers of the Corporation in the
notice of the action to be taken by consent.
(e)
Any copy, facsimile or other reliable reproduction of a consent in writing may
be substituted or used in lieu of the original writing for any and all purposes
for which the original writing could be used, provided that such copy, facsimile
or other reproduction shall be a complete reproduction of the entire original
writing.
(f)
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing and who, if the action had been taken at a meeting, would
have been entitled to notice of the meeting if the record date for notice of
such meeting had been the date that written consents signed by a sufficient
number of holders to take the action were delivered to the Corporation. In the
event that the action which is consented to is such as would have required the
filing of a certificate under any other section of this title, if such action
had been voted on by stockholders or by members at a meeting thereof, the
certificate filed under such other section shall state, in lieu of any statement
required by such section concerning any vote of stockholders, that written
consent has been given in accordance with this section.
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2.13 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING;
CONSENTS.
(a)
In order that the Corporation may determine the stockholders entitled to notice
of any meeting of stockholders or any adjournment thereof, the Board may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board, and which record date
shall, unless otherwise required by law, not be more than sixty (60) nor less
than ten (10) days before the date of such meeting. If the Board so fixes a
date, such date shall also be the record date for determining the stockholders
entitled to vote at such meeting unless the Board determines, at the time it
fixes such record date, that a later date on or before the date of the meeting
shall be the date for making such determination. If no record date is fixed by
the Board, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for
determination of stockholders entitled 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 same or an earlier date as that fixed for
determination of stockholders entitled to vote in accordance herewith at the
adjourned meeting.
(b)
In order that the Corporation may determine the stockholders entitled to consent
to corporate action in writing without a meeting, the Board may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board, and which date shall not be more
than ten (10) days after the date upon which the resolution fixing the record
date is adopted by the Board. If no record date has been fixed by the Board the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the day on
which the Board that the action may be taken by consent of the stockholders.
(c)
In order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board may fix a
record date, which shall not be more than sixty (60) days prior to such other
action. If no such 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 which the Board adopts the resolution relating thereto.
2.14 PROXIES.
Each stockholder entitled to vote at a meeting of stockholders may authorize
another person or persons to act for such stockholder by proxy authorized by an
instrument in writing or by a transmission permitted by law filed in accordance
with the procedure established for the meeting, but no such proxy shall be voted
or acted upon after three (3) years from its date, unless the proxy provides for
a longer period. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Section 212 of the DGCL. A
proxy may be in the form of any means of electronic transmission that sets forth
or is submitted with information from which it can be determined that the means
of electronic transmission was authorized by the stockholder.
2.15 LIST OF STOCKHOLDERS ENTITLED TO VOTE.
The officer who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting (provided,
however, if the record date for determining the stockholders entitled to
vote is less than ten (10) days before the date of the meeting, the list shall
reflect the stockholders entitled to vote as of the tenth day before the date of
the meeting), arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
The Corporation shall not be required to include electronic mail addresses or
other electronic contact information 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 ten (10) days prior to the meeting: (a) on a reasonably
accessible electronic network, provided that the information required to gain
access to such list is provided with the notice of the meeting, or (b) during
ordinary business hours, at the Corporations principal executive office. In the event that the Corporation determines
to make the list available on an electronic network, the Corporation may take
reasonable steps to ensure that such information is available only to
stockholders of the Corporation. If the meeting is to be held at a place, then
the list shall be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
If the meeting is to be held solely by means of remote communication, then the
list shall also be open to the examination of any stockholder during the whole
time of the meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the notice of
the meeting. Except as otherwise provided by law, the stock ledger shall be the
only evidence as to the identity of the stockholders entitled to vote in person
or by proxy and the number of shares held by each of them, and as to the
stockholders entitled to examine the list of stockholders.
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2.16 POSTPONEMENT AND CANCELLATION OF MEETING.
Any previously scheduled annual or special meeting of the stockholders may be
postponed, and any previously scheduled annual or special meeting of the
stockholders may be canceled, by resolution of the Board upon public notice
given prior to the time previously scheduled for such meeting.
2.17 INSPECTORS OF ELECTION.
Before any meeting of stockholders, the Board may, but need not, appoint an
inspector or inspectors of election to act at the meeting or its adjournment or
postponement and make a written report thereof. If an inspector or inspectors
are not so appointed, the chairperson of the meeting may, but need not, appoint
one or more inspectors. The number of inspectors shall be either one (1) or
three (3). If any person appointed as inspector fails to appear or fails or
refuses to act, then the chairperson of the meeting may, and upon the request of
any stockholder or a stockholders proxy shall, appoint a person to fill that
vacancy. Unless otherwise required by law, inspectors may be officers, employees
or agents of the Corporation. Such inspectors shall have the duties prescribed
by law and shall take charge of the polls and, when the vote is completed, shall
make a certificate of the result of the vote taken and of such other facts as
may be required by law. The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as expeditiously as
is practical. If there are three (3) inspectors of election, the decision, act
or certificate of a majority is effective in all respects as the decision, act
or certificate of all. Any report or certificate made by the inspectors of
election is prima facie evidence of the facts stated therein.
ARTICLE III - DIRECTORS
3.1
POWERS. Subject to the provisions of the DGCL and
any limitations in the certificate of incorporation relating to action required
to be approved by the stockholders, the business and affairs of the Corporation
shall be managed and all corporate powers shall be exercised by or under the
direction of the Board.
3.2 NUMBER OF DIRECTORS.
The authorized number of directors shall be determined from time to time by
resolution of the Board, provided the Board shall consist of at least one (1)
member. No reduction of the authorized number of directors shall have the effect
of removing any director before that directors term of office expires.
3.3 ELECTION, QUALIFICATION AND TERM
OF OFFICE OF DIRECTORS.
Except as provided in Section 3.4, each director, including,
without limitation, a director elected to fill a vacancy, shall hold office
until the expiration of the term for which elected and until such directors
successor is elected and qualified or until such directors earlier death,
resignation or removal. Directors need not be stockholders unless so required by
the certificate of incorporation or these bylaws. The certificate of
incorporation or these bylaws may prescribe other qualifications for directors.
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3.4
RESIGNATION AND VACANCIES.
Any director may resign at any time upon notice given in writing or by
electronic transmission to the Corporation. When one or more directors so
resigns and the resignation is effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have power
to fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen
shall hold office as provided in this section in the filling of other vacancies.
Unless otherwise provided in the certificate of incorporation or these bylaws,
vacancies and newly created directorships resulting from any increase in the
authorized number of directors shall, unless the Board determines by resolution
that any such vacancies or newly created directorships shall be filled by
stockholders, be filled only by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. Any director
elected in accordance with the preceding sentence shall hold office for the
remainder of the full term of the director for which the vacancy was created or
occurred and until such directors successor shall have been elected and
qualified. A vacancy in the Board shall be deemed to exist under these bylaws in
the case of the death, removal or resignation of any director.
3.5
PLACE OF MEETINGS; MEETINGS BY TELEPHONE.
The Board may hold meetings, both regular and special, either within or outside
the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or these bylaws,
members of the Board, or any committee designated by the Board, may participate
in a meeting of the Board, or any committee, by means of conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting pursuant to
this bylaw shall constitute presence in person at the meeting.
3.6
REGULAR MEETINGS.
Regular meetings of the Board may be held without notice at such time and at
such place as shall from time to time be determined by the Board.
3.7
SPECIAL MEETINGS; NOTICE.
Special meetings of the Board for any purpose or purposes may be called at any
time by the chairperson of the Board, the chief executive officer, the
president, the secretary or a majority of the authorized number of directors.
Notice
of the time and place of special meetings shall be:
(a) delivered personally by hand, by
courier or by telephone;
(b) sent by United States first-class
mail, postage prepaid;
(c) sent by facsimile; or
(d)
sent by electronic mail,
directed to each director at that directors address, telephone number,
facsimile number or electronic mail address, as the case may be, as shown on the
Corporations records.
If the notice is (a) delivered personally by hand, by courier or by telephone,
(b) sent by facsimile or (c) sent by electronic mail, it shall be delivered or
sent at least twenty-four (24) hours before the time of the holding of the
meeting. If the notice is sent by United States mail, it shall be deposited in
the United States mail at least four (4) days before the time of the holding of the
meeting. Any oral notice may be communicated to the director. The notice need
not specify the place of the meeting (if the meeting is to be held at the
Corporations principal executive office) nor the purpose of the meeting.
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3.8 QUORUM.
The greater of (a) a majority of the directors at any time in office and (b)
one-third of the number of directors established by the Board pursuant to
Section 3.2 shall constitute a quorum of the Board for the
transaction of business. The vote of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board, except as
may be otherwise specifically provided by statute, the certificate of
incorporation or these bylaws. If a quorum is not present at any meeting of the
Board, then the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present.
3.9 BOARD ACTION BY CONSENT WITHOUT A
MEETING.
Unless otherwise restricted by the certificate of incorporation or these bylaws,
any action required or permitted to be taken at any meeting of the Board, or of
any committee thereof, may be taken without a meeting if all members of the
Board or committee, as the case may be, consent thereto in writing or by
electronic transmission and the writing or writings or electronic transmission
or transmissions are filed with the minutes of proceedings of the Board or
committee. Such filing shall be in paper form if the minutes are maintained in
paper form and shall be in electronic form if the minutes are maintained in
electronic form.
3.10 FEES AND COMPENSATION OF DIRECTORS.
Unless otherwise restricted by the certificate of incorporation or these bylaws,
the Board shall have the authority to fix the compensation of directors.
3.11 REMOVAL OF DIRECTORS.
Subject to the rights of the holders of the shares of any series of Preferred
Stock, the Board or any individual director may be removed from office only by
the affirmative vote of the holders of at least two-thirds in voting power of
the outstanding shares of capital stock of the Corporation entitled to vote
thereon.
ARTICLE IV - COMMITTEES
4.1 COMMITTEES OF DIRECTORS.
The Board may designate one (1) or more committees, each committee to consist of
one (1) or more of the directors of the Corporation. The Board may designate one
(1) 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 a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board or in these bylaws, shall have and may exercise all the powers and
authority of the Board 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 that may require it; but no such committee shall have the power or
authority to (a) approve or adopt, or recommend to the stockholders, any action
or matter (other than the election or removal of directors) expressly required
by the DGCL to be submitted to stockholders for approval, or (b) adopt, amend or
repeal any bylaw of the Corporation.
4.2 COMMITTEE MINUTES.
Each committee shall keep regular minutes of its meetings and report the same to
the Board when required.
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4.3 MEETINGS AND ACTION OF COMMITTEES.
Meetings and actions of committees shall be governed by, and held and taken in
accordance with, the provisions of:
(a) Section 3.5 (place
of meetings and meetings by telephone);
(b)
Section 3.6 (regular meetings);
(c) Section 3.7 (special
meetings and notice);
(d) Section 3.8
(quorum);
(e) Section 7.12 (waiver
of notice); and
(f) Section 3.9 (action
without a meeting),
with such changes in the context of those bylaws as are necessary to substitute
the committee and its members for the Board and its members. However:
(i)
the time of regular meetings of committees may be determined either by
resolution of the Board or by resolution of the committee;
(ii)
special meetings of committees may also be called by resolution of the Board;
and
(iii)
notice of special meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the committee. The
Board may adopt rules for the government of any committee not inconsistent with
the provisions of these bylaws.
ARTICLE V - OFFICERS
5.1 OFFICERS.
The officers of the Corporation shall be a president and a secretary. The
Corporation may also have, at the discretion of the Board, a chairperson of the
Board, a vice chairperson of the Board, a chief executive officer, a chief
financial officer or treasurer, one (1) or more vice presidents, one (1) or more
assistant vice presidents, one (1) or more assistant treasurers, one (1) or more
assistant secretaries, and any such other officers as may be appointed in
accordance with the provisions of these bylaws. Any number of offices may be
held by the same person.
5.2 APPOINTMENT OF OFFICERS.
The
Board shall appoint the officers of the Corporation, except such officers as may
be appointed in accordance with the provisions of Section 5.3,
subject to the rights, if any, of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS.
The
Board may appoint, or empower the chief executive officer or, in the absence of
a chief executive officer, the president, to appoint, such other officers and
agents as the business of the Corporation may require. Each of such officers and
agents shall hold office for such period, have such authority, and perform such
duties as are provided in these bylaws or as the Board may from time to time
determine.
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5.4 REMOVAL AND RESIGNATION OF
OFFICERS.
Subject to the rights, if any, of an officer under any contract of employment,
any officer may be removed, either with or without cause, by the Board at any
regular or special meeting of the Board or, except in the case of an officer
chosen by the Board, by any officer upon whom such power of removal may be
conferred by the Board.
Any officer may resign at any time by giving written notice to the Corporation.
Any resignation shall take effect at the date of the receipt of that notice or
at any later time specified in that notice. Unless 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 Corporation under any contract to which the officer is a party.
5.5 VACANCIES IN OFFICES.
Any vacancy occurring in any office of the Corporation shall be filled by the
Board or as provided in Section 5.2.
5.6 REPRESENTATION OF SHARES OF OTHER
CORPORATIONS.
The chairperson of the Board, the chief executive officer, the president, any
vice president, the treasurer, the chief financial officer, the secretary or
assistant secretary of this Corporation, or any other person authorized by the
Board or the president or a vice president, is authorized to vote, represent and
exercise on behalf of this Corporation all rights incident to any and all
securities of any other entity or entities standing in the name of this
Corporation. The authority granted herein may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
5.7 AUTHORITY AND DUTIES OF OFFICERS.
All officers of the Corporation shall respectively have such authority and
perform such duties in the management of the business of the Corporation as may
be designated from time to time by the Board and, to the extent not so provided,
as generally pertain to their respective offices, subject to the control of the
Board.
ARTICLE VI - RECORDS AND REPORTS
6.1
MAINTENANCE OF RECORDS.
The Corporation shall, either at its principal executive office or at such place
or places as designated by the Board, keep a record of its stockholders listing
their names and addresses and the number and class of shares held by each
stockholder, a copy of these bylaws as amended to date, accounting books and
other records.
ARTICLE VII - GENERAL MATTERS
7.1 EXECUTION OF CORPORATE CONTRACTS
AND INSTRUMENTS.
The Board, except as otherwise provided in these bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the Corporation; such authority
may be general or confined to specific instances. Unless so authorized or
ratified by the Board or within the agency power of an officer, no officer,
agent or employee shall have any power or authority to bind the Corporation by
any contract or engagement or to pledge its credit or to render it liable for
any purpose or for any amount.
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7.2 STOCK CERTIFICATES; PARTLY PAID
SHARES.
The shares of the Corporation shall be represented by certificates or shall be
uncertificated. Certificates for the shares of stock, if any, shall be in such
form as is consistent with the certificate of incorporation and applicable law.
Every holder of stock represented by a certificate shall be entitled to have a
certificate signed by, or in the name of the Corporation by the chairperson or
vice chairperson of the Board, or the president or 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.
The Corporation may issue the whole or any part of its shares as partly paid and
subject to call for the remainder of the consideration to be paid therefor. Upon
the face or back of each stock certificate issued to represent any such partly
paid shares, or upon the books and records of the Corporation in the case of
uncertificated partly paid shares, the total amount of the consideration to be
paid therefor and the amount paid thereon shall be stated. Upon the declaration
of any dividend on fully paid shares, the Corporation shall declare a dividend
upon partly paid shares of the same class, but only upon the basis of the
percentage of the consideration actually paid thereon.
7.3 SPECIAL DESIGNATION ON
CERTIFICATES.
If the Corporation is authorized to issue more than one class of stock or more
than one series of any class, then the powers, the designations, 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 rights shall be set forth in full or summarized on
the face or back of the certificate that the Corporation shall issue to
represent such class or series of stock; provided, however, that, except
as otherwise provided in Section 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 Corporation shall issue to represent such class or series of stock a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, the designations, 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 rights.
7.4 LOST CERTIFICATES.
Except as provided in this Section 7.4, no new certificates for
shares shall be issued to replace a previously issued certificate unless the
latter is surrendered to the Corporation and cancelled at the same time. The
Corporation may issue a new certificate of stock or uncertificated shares in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or such owners legal representative, to give
the Corporation a bond or other assurance 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 certificate or the issuance of such new certificate or
uncertificated shares.
7.5 CONSTRUCTION; DEFINITIONS.
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the DGCL shall govern the construction of these
bylaws. Without limiting the generality of this provision, the singular number
includes the plural, the plural number includes the singular, and the term
person includes both a corporation and a natural person. Unless otherwise
indicated, all references in these bylaws to a Section or Sections are to the
section or sections of these bylaws.
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7.6 DIVIDENDS.
The Board, subject to any restrictions contained in either (a) the DGCL or (b)
the certificate of incorporation, may declare and pay dividends upon the shares
of its capital stock. Dividends may be paid in cash, in property or in shares of
the Corporations capital stock.
The Board may set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and may abolish any such
reserve. Such purposes shall include but not be limited to equalizing dividends,
repairing or maintaining any property of the Corporation, and meeting
contingencies.
7.7 FISCAL YEAR.
The fiscal year of the Corporation shall be fixed by resolution of the Board and
may be changed by the Board.
7.8 SEAL.
The Corporation may adopt a corporate seal, which shall be adopted and which may
be altered by the Board. The Corporation may use the corporate seal by causing
it or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
7.9 TRANSFER OF STOCK.
Stock of the Corporation shall be transferable in the manner prescribed by law
and in these bylaws. Shares of stock of the Corporation shall be transferred on
the books of the Corporation only by the holder of record thereof or by such
holders attorney duly authorized in writing, upon surrender to the Corporation
of the certificate or certificates representing such shares endorsed by the
appropriate person or persons (or by delivery of duly executed instructions with
respect to uncertificated shares), with such evidence of the authenticity of
such endorsement or execution, transfer, authorization and other matters as the
Corporation may reasonably require, and accompanied by all necessary stock
transfer stamps. No transfer of stock shall be valid as against the Corporation
for any purpose until it shall have been entered in the stock records of the
Corporation by an entry showing the names of the persons from and to whom it was
transferred.
7.10 STOCK TRANSFER AGREEMENTS.
The Corporation shall have power to enter into and perform any agreement with
any number of stockholders of any one or more classes of stock of the
Corporation to restrict the transfer of shares of stock of the Corporation of
any one or more classes owned by such stockholders in any manner not prohibited
by the DGCL.
7.11 REGISTERED STOCKHOLDERS.
The
Corporation:
(a)
shall be entitled to recognize the exclusive right of a person registered on its
books as the owner of shares to receive dividends and to vote as such owner;
(b)
shall be entitled to hold liable for calls and assessments the person registered
on its books as the owner of shares; and
(c)
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of another person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
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7.12 WAIVER OF NOTICE.
Whenever notice is required to be given under any provision of the DGCL, the
certificate of incorporation or these bylaws, a written waiver, signed by the
person entitled to notice, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice or any waiver by electronic
transmission unless so required by the certificate of incorporation or these
bylaws.
ARTICLE VIII - NOTICE BY ELECTRONIC TRANSMISSION
8.1 NOTICE BY ELECTRONIC TRANSMISSION.
Without
limiting the manner by which notice otherwise may be given effectively to
stockholders pursuant to the DGCL, the certificate of incorporation or these
bylaws, any notice to stockholders given by the Corporation under any provision
of the DGCL, the certificate of incorporation or these bylaws shall be effective
if given by a form of electronic transmission consented to by the stockholder to
whom the notice is given. Any such consent shall be revocable by the stockholder
by written notice to the Corporation. Any such consent shall be deemed revoked
if:
(a)
the Corporation is unable to deliver by electronic transmission two (2)
consecutive notices given by the Corporation in accordance with such consent;
and
(b)
such inability becomes known to the secretary or an assistant secretary of the
Corporation or to the transfer agent, or other person responsible for the giving
of notice.
However, the inadvertent failure to treat such inability as a revocation shall
not invalidate any meeting or other action.
Any
notice given pursuant to the preceding paragraph shall be deemed given:
(a)
if by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice;
(b)
if by electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice;
(c)
if by a posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (i) such posting and
(ii) the giving of such separate notice; and
(d) if by any other form of electronic
transmission, when directed to the stockholder.
An affidavit of the secretary or an assistant secretary of the Corporation or of
the transfer agent or other agent of the Corporation that the notice has been
given by a form of electronic transmission shall, in the absence of fraud, be
prima facie evidence of the facts stated therein.
8.2
DEFINITION OF ELECTRONIC TRANSMISSION.
For the purposes of these bylaws, an electronic transmission means any
form of communication, not directly involving the physical transmission of
paper, that creates a record that may be retained, retrieved and reviewed by a
recipient thereof, and that may be directly reproduced in paper form by such a
recipient through an automated process.
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ARTICLE IX - INDEMNIFICATION
9.1
INDEMNIFICATION AND ADVANCEMENT.
The rights of directors, officers and other persons to indemnification and
advancement of expenses shall be as provided in the certificate of incorporation
or in any separate indemnification agreement between the Corporation and any
such director, officer or other person.
ARTICLE X - AMENDMENTS
Subject to the provisions of the certificate of incorporation, the Board is
expressly empowered to adopt, amend or repeal the bylaws of the Corporation. The
stockholders also shall have power to adopt, amend or repeal the bylaws of the
Corporation; provided, however, 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, such action by stockholders shall require the
affirmative vote of the holders of a majority in voting power of the outstanding
shares of capital stock of the Corporation entitled to vote thereon.
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Amended and Restated as of ________, 2015
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Francis M. Munchinski, Secretary
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