Exhibit 99.1
Intevac, Inc.
3560 Basset Street
Santa Clara, California 95054
(408) 986-9888
SUPPLEMENT
TO
PROXY STATEMENT
FOR
ANNUAL MEETING OF SHAREHOLDERS
to be held on May 15, 2007
The date of this Supplement is May 4, 2007.
On April 16, 2007, Intevac, Inc. (the Company) filed a definitive Proxy Statement relating to the
Companys 2007 Annual Meeting of Shareholders. The Annual Meeting is scheduled for May 15, 2007 at
9:00 AM at the Companys offices in Santa Clara, California. As previously disclosed, the record
date for determining shareholders entitled to vote at the Annual Meeting is the close of business
on March 22, 2007. This Supplement amends and supplements the Proxy Statement to change
information regarding Proposal 2, the reincorporation of Intevac from California to Delaware.
Proposal 2 being voted on at the 2007 Annual Meeting of Shareholders is the approval of the
reincorporation of Intevac from California to Delaware. After discussing the proposal, and the
proposed charter documents that will govern the Company as a Delaware corporation, with
shareholders and institutional shareholder advisors, the Company has decided to make changes in the
proposed charter documents. These changes are as follows:
1. Electing for Intevac not to be governed by Section 203 of the Delaware General
Corporation Law (DGCL).
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Under Section 203 of the DGCL, a Delaware corporation is prohibited from engaging in a
business combination with an interested shareholder for three years following the date
that that person or entity becomes an interested shareholder, subject to certain exceptions.
Delaware law permits a corporation to elect in its certificate of incorporation not to be
governed by Section 203. California law does not have a section similar to Section 203,
although it does have different provisions that may limit a corporations ability to engage
in certain business combinations.
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If the Company as a Delaware corporation were subject to Section 203, the Board of Directors
would have the power to reject a proposed business combination in certain circumstances,
even though a potential acquiror might offer a substantial premium for the Companys shares
over the then-current market price. In addition, Section 203 could also discourage
potential acquirors who are unwilling to
comply with its provisions from even approaching the Company, which could have negative
effects for the Companys stockholders.
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In the original Proxy Statement, the Company proposed not to affirmatively deviate from the
default provisions of Delaware law and the structures of mainstream Delaware corporations in
this respect. Accordingly, the Companys proposed Delaware certificate
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of incorporation did
not include a provision electing not to be governed by Section 203. After discussions with
shareholders and institutional shareholder advisors, however, the Company has now decided to
reverse this position and to revise the proposed Delaware certificate of incorporation to
provide that the Company will not be governed by Section 203 of the DGCL. As a result, the
Company will not be able to invoke Section 203 in responding to proposals by interested
stockholders.
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2. Limiting the ability of the Companys Board of Directors to change its own size to a
range of 5 to 9 directors.
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California law provides that the number of directors of a corporation may be fixed in the
corporations articles of incorporation or bylaws, or a range may be established for the
number of directors, with the board itself given authority to fix the exact number of
directors within such range. Delaware law provides that, unless a corporations certificate
of incorporation fixes the number of directors, the number shall be fixed by, or in the
manner provided in, the corporations bylaws, thus giving the board the power to determine
its own size. If, however, the certificate of incorporation fixes the number of directors,
a change in the number may be made only by amendment of the certificate of incorporation.
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Currently, the Companys California bylaws specify a range of five to nine for the number of
directors and authorize the Board to fix the exact number of directors within that range by
resolution or unanimous written consent.
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As above, in the original Proxy Statement, the Company proposed not to affirmatively deviate
from the default provisions of Delaware law and the structures of mainstream Delaware
corporations in this respect. Accordingly, the Company proposed not to place limits on the
Boards ability to determine its own size without stockholder approval. After discussions
with shareholders and institutional shareholder advisors, however, the Company has now
decided to reverse this position and to revise the proposed Delaware certificate of
incorporation to provide that the Board can determine the exact number of directors on its
own only within the range of five to nine directors.
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3.
Eliminating the ability of the Companys Board of Directors to fill a vacancy on the
Board created by the removal of a director by stockholder vote.
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Under California law, any vacancy on a corporations board of directors, other than one
created by removal of a director, may be filled by the board itself. Under Delaware law,
any vacancy or newly created directorship may be filled by a majority of the directors then
in office, even if less than a quorum, or by a sole remaining director, unless otherwise
provided in the corporations certificate of
incorporation or bylaws. Thus, under Delaware law, unless a corporation provides otherwise,
the board may fill even a vacancy created by removal of a director by stockholder vote.
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In the original Proxy Statement, the Company proposed not to affirmatively deviate from the
structures of mainstream Delaware corporations with respect to limiting the power of the
Board to fill vacancies after the removal of a director. Accordingly, the Company proposed
not to prohibit the Board from filling vacancies created by the removal of a director by a
stockholder vote.
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After discussions with shareholders and institutional shareholder advisors, however, the
Company has now decided to reverse this position and to revise the proposed Delaware
certificate of incorporation to provide that the Board cannot fill a vacancy on the Board
created by the removal of a director by a stockholder vote, to the extent such a limitation
is permitted by Delaware law.
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The Companys Board of Directors recommends that you vote FOR the reincorporation, as proposed
with the changes described above.
A copy of this Supplement to the Proxy Statement was filed as Exhibit 99.1 to the Companys Current
Report on Form 8-K, dated May 4, 2007, and filed with the SEC on May 4, 2007. Copies of the
revised proposed certificate of incorporation and bylaws for Intevac as a Delaware corporation were
filed as Exhibits 99.2 and 99.3, respectively, to such Form 8-K and are incorporated herein by
reference.
In
addition, for your convenience, a copy of the revised Delaware
certificate of incorporation is attached as Appendix A and excerpts
from the Delaware bylaws setting forth the changed sections are attached as Appendix B.
For your convenience in voting, an additional proxy card has been enclosed with this Supplement.
If you have not already voted, please sign, date and return the enclosed proxy card as soon as
possible, so that your shares may be represented at the meeting.
You may also vote by telephone by
calling 1-800-652-VOTE (8683) or by Internet at www.investorvote.com.
Please see the original
Proxy Statement and the instructions on the enclosed proxy card for additional information
concerning voting.
If you have already voted and do not wish to change your vote, you do not have to vote again.
APPENDIX A
CERTIFICATE OF INCORPORATION
INTEVAC, INC.
ARTICLE I
The name of the corporation is Intevac, Inc.
ARTICLE II
The purpose of the corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware (the
DGCL
).
ARTICLE III
The address of the corporations registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The
name of the registered agent at such address is The Corporation Trust Company.
ARTICLE IV
The name and mailing address of the incorporator are as follows:
Charles B. Eddy III
Intevac, Inc.
3560 Bassett Street
Santa Clara, California 95054
ARTICLE V
The total number of shares of stock that the corporation shall have authority to issue is
Sixty Million (60,000,000), consisting of Fifty Million (50,000,000) shares of Common Stock, $0.001
par value per share, and Ten Million (10,000,000) shares of Preferred Stock, $0.001 par value per
share.
The undesignated Preferred Stock may be issued from time to time in one or more series. The
Board of Directors of the corporation is authorized to determine the designation and to fix the
number of shares of any series of the undesignated Preferred Stock, and to determine or alter the
rights, preferences, privileges and restrictions granted to or imposed upon any wholly unissued
series of undesignated Preferred Stock, including provisions with respect to dividends,
liquidation, conversion, full, limited, or no voting powers, redemption and other rights. Within
the limits and restrictions stated in any resolution or resolutions of the Board of Directors
originally fixing the number of shares constituting any such series of the undesignated Preferred
Stock, the Board of Directors is further authorized to increase or decrease (but not below the
number of shares of that series then outstanding) the number of shares of that series subsequent to
the issue of shares of that
series. In case the number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
ARTICLE VI
The number of directors that constitutes the entire Board of Directors shall be no less than
five (5) nor more than nine (9), the exact number of directors to be fixed from time to time within
such limit by a duly adopted resolution of the Board of Directors.
Vacancies in the Board of Directors and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director, except that a vacancy
created by the removal of a director by the vote of the stockholders or by court order may be
filled only by the vote of a majority of the shares entitled to vote represented at a duly held
meeting at which a quorum is present.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors is expressly authorized to adopt, amend or repeal the Bylaws of the corporation.
ARTICLE VIII
The election of directors need not be by written ballot unless the Bylaws of the corporation
shall so provide.
ARTICLE IX
Special meetings of the stockholders of the corporation for any purpose or purposes may be
called at any time by the president of the corporation, the chairman of the Board of Directors or a
majority of the authorized number of directors or by the holders of shares entitled to cast not
less than ten percent of the votes at the meeting, but such special meetings may not be called by
any other person or persons. No action shall be taken by the stockholders of the corporation except
at an annual or special meeting of the stockholders called in accordance with this Certificate of
Incorporation or the Bylaws of the corporation, and no action shall be taken by the stockholders by
written consent.
ARTICLE X
To the fullest extent permitted by the DGCL as the same exists or as may hereafter be amended,
a director of the corporation shall not be personally liable to the corporation or its stockholders
for monetary damages for a breach of fiduciary duty as a director. If the DGCL is amended to
authorize corporate action further limiting or eliminating the personal liability of directors,
then the liability of a director of the corporation shall be limited or eliminated to the fullest
extent permitted by the DGCL, as so amended.
The corporation shall have the power to indemnify, to the extent permitted by the DGCL, as it
currently exists or may hereafter be amended from time to time, any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
Proceeding
), by reason of
the fact that he or she is or was a director, officer, employee or agent of the corporation or is
or was serving at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, against expenses (including attorneys fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person in connection with
any such Proceeding.
Neither any amendment nor repeal of this Article X, nor the adoption of any provision of this
Certificate of Incorporation inconsistent with this Article X, shall eliminate or reduce the effect
of this Article X in respect of any matter occurring, or any action, suit or proceeding accruing or
arising or that, but for this Article X, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
ARTICLE XI
Except as provided in Article X above, the corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted
subject to this reservation.
ARTICLE XII
Pursuant to DGCL Section 203(b)(1), the corporation shall not be governed by the provisions of
DGCL Section 203.
* * *
I, the undersigned, as the sole incorporator of the corporation, have signed this Certificate
of Incorporation on
, 2007.
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Charles B. Eddy III
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Incorporator
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APPENDIX B
EXCERPTS FROM
BYLAWS OF INTEVAC, INC. (a Delaware corporation)
The following sections of the proposed Bylaws of Intevac, Inc., a Delaware corporation, have
been revised from the corresponding sections contained in the form of proposed Bylaws attached to
the definitive Proxy Statement of Intevac, Inc., a California corporation, relating to its
2007 Annual Meeting of Shareholders filed with the Securities and Exchange Commission on April 16,
2007 and subsequently distributed to all stockholders. All sections not set forth below remain
unchanged from the previous form.
* * *
3.2 NUMBER OF DIRECTORS
The Board shall consist of one or more members, each of whom shall be a natural person. The
number of directors shall be determined from time to time by resolution of the Board, within the
range set forth in the certificate of incorporation. No reduction of the authorized number of
directors shall have the effect of removing any director before that directors term of office
expires.
* * *
3.4 RESIGNATION AND VACANCIES
Any director may resign at any time upon notice given in writing or by electronic transmission
to the corporation. A resignation is effective when the resignation is delivered, unless the
resignation specifies a later effective date or an effective date determined upon the happening of
an event or events. Unless otherwise provided in the certificate of incorporation or these bylaws,
when one or more directors resign from the Board effective at a future date, a majority of the
directors then in office, including those who are resigning, shall have power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or resignations shall become
effective.
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
elected by all of the stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a sole remaining
director, except that a vacancy created by the removal of a director by the vote of the
stockholders or by court order may be filled only by the vote of a majority of the shares entitled
to vote represented at a duly held meeting at which a quorum is present.
If at any time, by reason of death or resignation or other cause, the corporation should have
no directors in office, then any officer or any stockholder or an executor, administrator, trustee
or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person
or estate of a stockholder, may call a special meeting of stockholders in accordance with the
provisions of the
certificate of incorporation or these bylaws, or may apply to the Court of Chancery for a
decree summarily ordering an election as provided in Section 211 of the DGCL.
If, at the time of filling any vacancy or any newly created directorship, the directors then
in office constitute less than a majority of the whole Board (as constituted immediately prior to
any such increase), the Court of Chancery may, upon application of any stockholder or stockholders
holding at least 10% of the voting stock at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in office as aforesaid,
which election shall be governed by the provisions of Section 211 of the DGCL as far as applicable.
Exhibit 99.3
BYLAWS OF
INTEVAC, INC.
(a Delaware corporation)
TABLE OF CONTENTS
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ARTICLE I CORPORATE OFFICES
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4
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1.1
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REGISTERED OFFICE
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4
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1.2
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OTHER OFFICES
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4
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ARTICLE II MEETINGS OF STOCKHOLDERS
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4
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2.1
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PLACE OF MEETINGS
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4
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2.2
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ANNUAL MEETING
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4
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2.3
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SPECIAL MEETING
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4
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2.4
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ADVANCE NOTICE PROCEDURES; NOTICE OF STOCKHOLDERS' MEETINGS
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5
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2.5
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MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
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6
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2.6
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QUORUM
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7
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2.7
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ADJOURNED MEETING; NOTICE
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7
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2.8
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CONDUCT OF BUSINESS
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7
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2.9
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VOTING
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7
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2.10
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STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
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8
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2.11
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RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
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8
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2.12
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PROXIES
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8
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2.13
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LIST OF STOCKHOLDERS ENTITLED TO VOTE
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8
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2.14
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INSPECTORS OF ELECTION
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9
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ARTICLE III DIRECTORS
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10
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3.1
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POWERS
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10
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3.2
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NUMBER OF DIRECTORS
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11
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3.3
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ELECTION AND TERM OF OFFICE OF DIRECTORS
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11
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3.4
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RESIGNATION AND VACANCIES
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11
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3.5
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PLACE OF MEETINGS; MEETINGS BY TELEPHONE
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12
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3.6
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REGULAR MEETINGS
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12
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3.7
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SPECIAL MEETINGS; NOTICE
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12
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3.8
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QUORUM; VOTING
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13
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3.9
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WAIVER OF NOTICE
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13
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3.10
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BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
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13
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3.11
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FEES AND COMPENSATION OF DIRECTORS
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13
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3.12
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REMOVAL OF DIRECTORS
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13
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3.13
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APPROVAL OF LOANS
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14
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ARTICLE IV COMMITTEES
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14
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4.1
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COMMITTEES OF DIRECTORS
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14
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4.2
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COMMITTEE MINUTES
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14
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4.3
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MEETINGS AND ACTION OF COMMITTEES
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15
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ARTICLE V OFFICERS
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15
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5.1
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OFFICERS
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15
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5.2
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APPOINTMENT OF OFFICERS
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15
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5.3
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SUBORDINATE OFFICERS
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.16
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5.4
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REMOVAL AND RESIGNATION OF OFFICERS
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16
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5.5
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VACANCIES IN OFFICES
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16
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5.6
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CHAIRMAN OF THE BOARD
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16
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5.7
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CHIEF EXECUTIVE OFFICER
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16
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5.8
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PRESIDENT
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17
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5.9
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VICE PRESIDENT
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17
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5.10
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SECRETARY
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17
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5.11
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CHIEF FINANCIAL OFFICER
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17
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5.12
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AUTHORITY AND DUTIES OF OFFICERS
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18
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ARTICLE VI RECORDS AND REPORTS
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18
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6.1
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MAINTENANCE AND INSPECTION OF RECORDS
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18
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6.2
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REPRESENTATION OF SHARES OF OTHER CORPORATIONS
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18
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ARTICLE VII GENERAL MATTERS
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19
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7.1
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CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS
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19
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7.2
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EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
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19
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7.3
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STOCK CERTIFICATES; PARTLY PAID SHARES
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19
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7.4
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SPECIAL DESIGNATION ON CERTIFICATES
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20
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7.5
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LOST CERTIFICATES
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20
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7.6
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CONSTRUCTION; DEFINITIONS
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20
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7.7
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DIVIDENDS
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20
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7.8
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FISCAL YEAR
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21
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7.9
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SEAL
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21
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7.10
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TRANSFER OF STOCK
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21
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7.11
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STOCK TRANSFER AGREEMENTS
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21
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7.12
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REGISTERED STOCKHOLDERS
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21
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7.13
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WAIVER OF NOTICE
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21
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ARTICLE VIII NOTICE BY ELECTRONIC TRANSMISSION
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22
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8.1
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NOTICE BY ELECTRONIC TRANSMISSION
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22
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8.2
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DEFINITION OF ELECTRONIC TRANSMISSION
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23
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8.3
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INAPPLICABILITY
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23
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ii
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ARTICLE IX INDEMNIFICATION
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23
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9.1
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Indemnification of Directors and Officers
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23
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9.2
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Indemnification of Others
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24
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9.3
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Insurance
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24
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9.4
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Expenses
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24
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9.5
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Non-Exclusivity of Rights
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25
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9.6
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Survival of Rights
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25
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9.7
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Amendments
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25
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ARTICLE X AMENDMENTS
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25
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iii
BYLAWS OF INTEVAC, INC.
ARTICLE I CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of Intevac, Inc. shall be fixed in the corporations certificate of
incorporation, as the same may be amended from time to time.
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 Delaware General Corporation Law (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 annual meeting of stockholders shall be held each year on such date and at a time designated by
the Board. At the annual meeting, directors shall be elected and any other proper business may be
transacted.
2.3 SPECIAL MEETING
A special meeting of the stockholders may be called as set forth in this corporations certificate
of incorporation.
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.
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2.4 ADVANCE NOTICE PROCEDURES; NOTICE OF STOCKHOLDERS MEETINGS
(i) 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: (A) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board, (B) otherwise properly brought before the meeting by or at the
direction of the Board, or (C) otherwise properly brought before the meeting by a stockholder. For
business to be properly brought before an annual meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the secretary of the corporation. 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 one hundred twenty (120) calendar days before the one year
anniversary of the date on which the corporation first mailed its proxy statement to stockholders
in connection with the previous years annual meeting of stockholders; provided, however, that in
the event that no annual meeting was held in the previous year or the date of the annual meeting
has been changed by more than thirty (30) days from the date of the prior years meeting, notice by
the stockholder to be timely must be so received not later than the close of business on the later
of one hundred twenty (120) calendar days in advance of such annual meeting and ten (10) calendar
days following the date on which public announcement of the date of the meeting is first made. A
stockholders notice to the secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting: (a) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the corporations books, of the stockholder proposing such
business, (c) the class and number of shares of the corporation that are beneficially owned by the
stockholder, (d) any material interest of the stockholder in such business, and (e) any other
information that is required to be provided by the stockholder pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the
1934 Act
), in the stockholders capacity as a
proponent to a stockholder proposal. Notwithstanding the foregoing, in order to include information
with respect to a stockholder proposal in the proxy statement and form of proxy for a stockholders
meeting, stockholders must provide notice as required by the regulations promulgated under the 1934
Act. Notwithstanding anything in these bylaws to the contrary, no business shall be conducted at
any annual meeting except in accordance with the procedures set forth in this paragraph (i). The
chairperson of the annual meeting shall, if the facts warrant, determine and declare at the meeting
that business was not properly brought before the meeting and in accordance with the provisions of
this paragraph (i), and, if the chairperson should so determine, he or she shall so declare at the
meeting that any such business not properly brought before the meeting shall not be transacted.
(ii) Only persons who are nominated in accordance with the procedures set forth in this
paragraph (ii) shall be eligible for election as directors. Nominations of persons for election to
the Board of the corporation may be made at a meeting of stockholders by or at the direction of the
Board or by any stockholder of the corporation entitled to vote in the election of directors at the
meeting who complies with the notice procedures set forth in this paragraph (ii). Such nominations,
other than those made by or at the direction of the Board, shall be made pursuant to timely notice
in writing to the secretary of the corporation in accordance with the provisions of paragraph (i)
of this Section 2.4. Such stockholders notice shall set forth (a) as to each person, if any, whom
the stockholder proposes to
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nominate for election or re-election as a director: (A) the name, age,
business address and residence address of such person, (B) the principal occupation or employment
of such person, (C) the class and number of shares of the corporation that are beneficially owned
by such person, (D) a description of
all arrangements or understandings between the stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the nominations are to be made
by the stockholder, and (E) any other information relating to such person that is required to be
disclosed in solicitations of proxies for elections of directors, or is otherwise required, in each
case pursuant to Regulation 14A under the 1934 Act (including without limitation such persons
written consent to being named in the proxy statement, if any, as a nominee and to serving as a
director if elected); and (b) as to such stockholder giving notice, the information required to be
provided pursuant to paragraph (i) of this Section 2.4. At the request of the Board, any person
nominated by a stockholder for election as a director shall furnish to the secretary of the
corporation that information required to be set forth in the stockholders notice of nomination
which pertains to the nominee. No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in this paragraph (ii).
The chairperson of the meeting shall, if the facts warrant, determine and declare at the meeting
that a nomination was not made in accordance with the procedures prescribed by these bylaws, and if
the chairperson should so determine, he or she shall so declare at the meeting, and the defective
nomination shall be disregarded.
These provisions shall not prevent the consideration and approval or disapproval at an annual
meeting of reports of officers, directors and committees of the Board, but in connection therewith
no new business shall be acted upon at any such meeting unless stated, filed and received as herein
provided. Notwithstanding anything in these bylaws to the contrary, no business brought before a
meeting by a stockholder shall be conducted at an annual meeting except in accordance with
procedures set forth in this Section 2.4.
Whenever stockholders are required or permitted to take any action at a meeting, a written notice
of the meeting shall be given which shall state the place, if any, date and hour of the meeting,
the means of remote communication, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting, and, in the case of a special meeting, the purpose
or purposes for which the meeting is called. Except as otherwise provided in the DGCL, the
certificate of incorporation or these bylaws, the written notice of any meeting of stockholders
shall be given not less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Notice of any meeting of stockholders shall be given:
(i) if mailed, when deposited in the United States mail, postage prepaid, directed to the
stockholder at his or her address as it appears on the corporations records; or
(ii) if
electronically transmitted as provided in Section 8.1 of these
bylaws.
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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.
2.6 QUORUM
The holders of a majority of the stock issued and outstanding and entitled to vote, present in
person or represented by proxy, shall constitute a quorum for the transaction of business at all
meetings of the stockholders. If, however, such quorum is not present or represented at any meeting
of the stockholders, then either (i) the chairperson of the meeting, or (ii) the stockholders
entitled to vote at the meeting, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at the meeting, 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.
2.7 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 30 days, or if after the
adjournment a new record date 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 meeting.
2.8 CONDUCT OF BUSINESS
The chairperson of any meeting of stockholders shall determine the order of business and the
procedure at the meeting, including such regulation of the manner of voting and the conduct of
business.
2.9 VOTING
The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance
with the provisions of Section 2.11 of these bylaws, 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 vote for each share of capital stock held by such stockholder.
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2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken by the stockholders of the corporation must be
effected at a duly called annual or special meeting of stockholders of the corporation and may not
be effected by any consent in writing by such stockholders.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
In order that the corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board may fix, in advance, a record date, which record date shall not precede the date
on which the resolution fixing the record date is adopted and which shall not be more than 60 nor
less than 10 days before the date of such meeting, nor more than 60 days prior to any other such
action.
If the Board does not so fix a record date:
(i) 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.
(ii) The record date for determining stockholders for any other purpose shall be at the close
of business on the day on which the Board adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting;
provided, however
, that the Board may
fix a new record date for the adjourned meeting.
2.12 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 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.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of the corporation shall prepare and make, at least
10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the
number of
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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 10 days prior to the meeting: (i) 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 (ii) 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. Such
list shall presumptively determine the identity of the stockholders entitled to vote at the meeting
and the number of shares held by each of them.
2.14 INSPECTORS OF ELECTION
A written proxy may be in the form of a telegram, cablegram, or other means of electronic
transmission which sets forth or is submitted with information from which it can be determined that
the telegram, cablegram, or other means of electronic transmission was authorized by the person.
Before any meeting of stockholders, the Board shall appoint an inspector or inspectors of
election to act at the meeting or its adjournment. 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.
Such inspectors shall:
(i) determine the number of shares outstanding and the voting power of each, the number of
shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and
effect of proxies;
(ii) receive votes, ballots or consents;
(iii) hear and determine all challenges and questions in any way arising in connection with
the right to vote;
(iv) count and tabulate all votes or consents;
(v) determine when the polls shall close;
(vi) determine the result; and
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(vii) do any other acts that may be proper to conduct the election or vote with fairness to
all stockholders.
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 limitation in the certificate of incorporation
and these bylaws relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the Board.
Without prejudice to these general powers, and subject to the same limitations, the Board
shall have the power to:
(i) Select and remove all officers, agents, and employees of the corporation; prescribe any
powers and duties for them that are consistent with law, with the certificate of incorporation, and
with these bylaws; fix their compensation; and require from them security for faithful service.
(ii) Change the principal executive office or the principal business office of the corporation
from one location to another; cause the corporation to be qualified to do business in any state,
territory, dependency, or country and conduct business within any such state, territory,
dependency, or country; and designate any place within or outside the State of Delaware for the
holding of any stockholders meeting, or meetings, including annual meetings.
(iii) Adopt, make, and use a corporate seal; prescribe the forms of certificates of stock; and
alter the form of the seal and certificates.
(iv) Authorize the issuance of shares of stock of the corporation on any lawful terms, in
consideration of money paid, labor done, services actually rendered, debts or securities cancelled,
or tangible or intangible property actually received.
(v) Borrow money and incur indebtedness on behalf of the corporation, and cause to be executed
and delivered for the corporations purposes, in the corporate name, promissory notes, bonds,
debentures, deeds of trust, mortgages, pledges, hypothecations, and other evidences of debt and
securities.
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3.2 NUMBER OF DIRECTORS
The Board shall consist of one or more members, each of whom shall be a natural person. The
number of directors shall be determined from time to time by resolution of the Board, within the
range set forth in the certificate of incorporation. 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 AND TERM OF OFFICE OF DIRECTORS
Directors shall be elected at each annual meeting of the stockholders to hold office until the
next annual meeting. Each director, including a director elected to fill a vacancy, shall hold
office until the expiration of the term for which elected and until a successor has been qualified
and elected or until such directors earlier death, resignation or removal.
3.4 RESIGNATION AND VACANCIES
Any director may resign at any time upon notice given in writing or by electronic transmission
to the corporation. A resignation is effective when the resignation is delivered, unless the
resignation specifies a later effective date or an effective date determined upon the happening of
an event or events. Unless otherwise provided in the certificate of incorporation or these bylaws,
when one or more directors resign from the Board effective at a future date, a majority of the
directors then in office, including those who are resigning, shall have power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or resignations shall become
effective.
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
elected by all of the stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a sole remaining
director, except that a vacancy created by the removal of a director by the vote of the
stockholders or by court order may be filled only by the vote of a majority of the shares entitled
to vote represented at a duly held meeting at which a quorum is present.
If at any time, by reason of death or resignation or other cause, the corporation should have
no directors in office, then any officer or any stockholder or an executor, administrator, trustee
or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person
or estate of a stockholder, may call a special meeting of stockholders in accordance with the
provisions of the certificate of incorporation or these bylaws, or may apply to the Court of
Chancery for a decree summarily ordering an election as provided in Section 211 of the DGCL.
If, at the time of filling any vacancy or any newly created directorship, the directors then
in office constitute less than a majority of the whole Board (as constituted immediately prior to
any such increase), the Court of Chancery may, upon application of any stockholder or stockholders
holding at least 10% of the voting stock at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or newly created
directorships, or to
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replace the directors chosen by the directors then in office as aforesaid, which election
shall be governed by the provisions of Section 211 of the DGCL as far as applicable.
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
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:
(i) delivered personally by hand, by courier or by telephone;
(ii) sent by United States first-class mail, postage prepaid;
(iii) sent by facsimile; or
(iv) 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 (i) delivered personally by hand, by courier or by telephone, (ii) sent by
facsimile or (iii) sent by electronic mail, it shall be delivered or sent at least 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 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; VOTING
At all meetings of the Board, a majority of the authorized number of directors shall
constitute a quorum for the transaction of business. 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. A meeting at which a
quorum is initially present may continue to transact business notwithstanding the withdrawal of
directors, if any action taken is approved by at least a majority of the required quorum for that
meeting.
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.
3.9 WAIVER OF NOTICE
Whenever notice is required to be given to a director under any provision of the DGCL or of
the certificate of incorporation or these bylaws, a written waiver thereof, signed by the director,
whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance
of a director at a meeting of the Board shall constitute a waiver of notice of such meeting, except
when the director attends such 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 Board, or of a committee of Board, need be specified in any written waiver of
notice, unless so required by the certificate of incorporation or these bylaws.
3.10 BOARD ACTION BY WRITTEN 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.
3.11 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.
3.12 REMOVAL OF DIRECTORS
Any director may be removed from office by the stockholders of the corporation.
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No reduction of the authorized number of directors shall have the effect of removing any
director prior to the expiration of such directors term of office.
3.13 APPROVAL OF LOANS
Subject to compliance with applicable law, the corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the corporation or its
subsidiary, whenever, in the judgment of the Board, such loan, guaranty or assistance may
reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be
with or without interest and may be unsecured, or secured in such manner as the Board shall
approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing
contained in this section shall be deemed to deny, limit or restrict the powers of guaranty or
warranty of the corporation at common law or under any statute.
ARTICLE IV COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The Board may, by resolution passed by a majority of the authorized number of directors,
designate one or more committees, each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the committee. 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 (i) approve or adopt, or recommend to the
stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders
for approval, (ii) adopt, amend or repeal any bylaw of the corporation, (iii) fill any vacancies on
the Board or on any committee, (iv) fix the compensation of the directors for serving on the Board
or any committee, or (v) authorize a distribution to the stockholders of the corporation, except at
a rate or in a periodic amount or within a price range determined by the Board.
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:
(i) Section 3.5 (place of meetings and meetings by telephone);
(ii) Section 3.6 (regular meetings);
(iii) Section 3.7 (special meetings; notice);
(iv) Section 3.8 (quorum; voting);
(v) Section 3.9 (waiver of notice); and
(vi) Section 3.10 (board action by written consent 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 or more vice presidents, one
or more assistant vice presidents, one or more assistant treasurers, one 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 Sections 5.3 and 5.5 of these bylaws, subject to the
rights, if any, of an officer under any contract of employment.
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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.
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 an affirmative vote of the majority of 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 5.3.
5.6 CHAIRMAN OF THE BOARD
The chairman of the Board, if such an officer be elected, shall, if present, preside at
meetings of the Board and exercise and perform such other powers and duties as may from time to
time be assigned to him by the Board or as may be prescribed by these bylaws. If there is no
president, then the chairman of the Board shall also be the chief executive officer of the
corporation and shall have the powers and duties prescribed in
Section 5.7 of these bylaws.
5.7 CHIEF EXECUTIVE OFFICER
Subject to such supervisory powers, if any, as may be given by the Board to the chairman of
the Board, if there be such an officer, the chief executive officer of the corporation shall,
subject to the control of the Board, have general supervision, direction and control of the
business and the officers of the corporation. He or she shall preside at all meetings of the
stockholders and, in the absence or nonexistence of a chairman of the board, at all meetings of the
Board. He or she shall have the general powers and duties of management usually vested in the
chief executive officer of a corporation, and shall have such other powers and perform such other
duties as may be prescribed by the Board or these bylaws.
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5.8 PRESIDENT
Subject to such supervisory powers, if any, as may be given by the Board to the chairman of
the Board and chief executive officer, if there be such an officer, the president of the
corporation shall, subject to the control of the Board, have general supervision over the operation
of the corporation, including the general powers and duties of management usually vested in the
office of president of a corporation, and shall have such other powers and perform such other
duties as may be prescribed by the Board or these bylaws. The offices of president and chief
executive officer may be held by the same person.
5.9 VICE PRESIDENT
In the absence or disability of the president, the vice presidents, if any, in order of their
rank as fixed by the Board or, if not ranked, a vice president designated by the Board, shall
perform all the duties of the president and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the president. The vice presidents shall have such other
powers and perform such other duties as from time to time may be prescribed for them respectively
by the Board, these bylaws, the president or the chairman of the Board.
5.10 SECRETARY
The secretary shall keep or cause to be kept, at the principal executive office of the
corporation or such other place as the Board may direct, a book of minutes of all meetings and
actions of directors, committees of directors, and stockholders. The minutes shall show the time
and place of each meeting, whether regular or special (and, if special, how authorized and the
notice given), the names of those present at directors meetings or committee meetings, the number
of shares present or represented at stockholders meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive office of the
corporation or at the office of the corporations transfer agent or registrar, as determined by
resolution of the Board, a share register, or a duplicate share register, showing the names of all
stockholders and their addresses, the number and classes of shares held by each, the number and
date of certificates evidencing such shares, and the number and date of cancellation of every
certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the stockholders and
of the Board required to be given by law or by these bylaws. He shall keep the seal of the
corporation, if one be adopted, in safe custody and shall have such other powers and perform such
other duties as may be prescribed by the Board or by these bylaws.
5.11 CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and business transactions of
the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, retained
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earnings, and shares. The books of account shall at all reasonable times
be open to inspection by any director.
The chief financial officer shall deposit all moneys and other valuables in the name and to
the credit of the corporation with such depositories as may be designated by the Board. He shall
disburse the funds of the corporation as may be ordered by the Board, shall render to the president
and directors, whenever they request it, an account of all of his transactions as chief financial
officer and of the financial condition of the corporation, and shall have other power and perform
such other duties as may be prescribed by the Board or these bylaws.
5.12 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 or the stockholders 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 AND INSPECTION 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.
Any stockholder of record, in person or by attorney or other agent, shall, upon written demand
under oath stating the purpose thereof, have the right during the usual hours for business to
inspect for any proper purpose the corporations stock ledger, a list of its stockholders, and its
other books and records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such persons interest as a stockholder. In every instance where an
attorney or other agent is the person who seeks the right to inspection, the demand under oath
shall be accompanied by a power of attorney or such other writing that authorizes the attorney or
other agent so to act on behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal executive office.
6.2 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairperson of the Board, the president, any vice president, the treasurer, 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 shares of any other corporation or corporations
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.
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ARTICLE VII GENERAL MATTERS
7.1 CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS
From time to time, the Board shall determine by resolution which person or persons may sign or
endorse all checks, drafts, other orders for payment of money, notes or other evidences of
indebtedness that are issued in the name of or payable to the corporation, and only the persons so
authorized shall sign or endorse those instruments.
7.2 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.
7.3 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of the corporation shall be represented by certificates, provided that the Board
may provide by resolution or resolutions that some or all of any or all classes or series of its
stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by
a certificate until such certificate is surrendered to the corporation. Notwithstanding the
adoption of such a resolution by the Board, every holder of stock represented by certificates, and
upon request every holder of uncertificated shares, 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 or she 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.
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7.4 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.
7.5 LOST CERTIFICATES
Except
as provided in this Section 7.5, 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 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.
7.6 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.
7.7 DIVIDENDS
The Board, subject to any restrictions contained in either (i) the DGCL, or (ii) 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.
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7.8 FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the Board and may be
changed by the Board.
7.9 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.
7.10 TRANSFER OF STOCK
Upon surrender to the corporation or the transfer agent of the corporation of a certificate
for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority
to transfer, it shall be the duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate, and record the transaction in its books.
7.11 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.
7.12 REGISTERED STOCKHOLDERS
The corporation:
(i) 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;
(ii) shall be entitled to hold liable for calls and assessments the person registered on its
books as the owner of shares; and
(iii) 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.
7.13 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
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shall constitute a waiver of notice of such meeting, except when the
person attends such 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:
(i) the corporation is unable to deliver by electronic transmission two consecutive notices
given by the corporation in accordance with such consent; and
(ii) 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:
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(i)
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if by facsimile telecommunication, when directed to a number at
which the stockholder has consented to receive notice;
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(ii)
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if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive notice;
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(iii)
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if by a posting on an electronic network together with separate
notice to the stockholder of such specific posting, upon the later of (A) such
posting and (B) the giving of such separate notice; and
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(iv)
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if by any other form of electronic transmission, when directed to
the stockholder.
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An affidavit of the secretary or an assistant secretary 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.
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8.2 DEFINITION OF ELECTRONIC TRANSMISSION
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.
8.3 INAPPLICABILITY
Notice by a form of electronic transmission shall not apply to Sections 164, 296, 311, 312 or
324 of the DGCL.
ARTICLE IX INDEMNIFICATION
9.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner permitted by the DGCL as the
same now exists or may hereafter be amended, indemnify any person against expenses (including
attorneys fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred
in connection with any threatened, pending or completed action, suit, or proceeding in which such
person was or is a party or is threatened to be made a party by reason of the fact that such person
is or was a director or officer of the corporation; provided, however, that the corporation may
modify the extent of such indemnification by individual contracts with its directors and officers
and, provided further, that the corporation shall not be required to indemnify any director or
officer in connection with any proceeding (or part thereof) initiated by such person unless (i)
such indemnification is expressly required to be made by law, (ii) the proceeding was authorized in
advance by the Board, (iii) such indemnification is provided by the corporation, in its sole
discretion, pursuant to the powers vested in the corporation under the DGCL or (iv) such
indemnification is required to be made pursuant to an individual contract. For purposes of this
Section 9.1, a director or officer of the corporation shall mean any person (a) who is or was a
director or officer of the corporation, (b) who is or was serving at the request of the corporation
as a director or officer of another corporation, partnership, joint venture, trust or other
enterprise, or (c) who was a director or officer of a corporation which was a predecessor
corporation of the corporation or of another enterprise at the request of such predecessor
corporation.
The corporation shall pay the expenses (including attorneys fees) incurred by a director or
officer of the corporation entitled to indemnification hereunder in defending any action, suit or
proceeding referred to in this Section 9.1 in advance of its final disposition; provided, however,
that payment of expenses incurred by a director or officer of the corporation in advance of the
final disposition of such action, suit or proceeding shall be made only upon receipt of an
undertaking by the director or officer to repay all amounts advanced if it should ultimately be
determined that the director or officer is not entitled to be
indemnified under this Section 9.1 or
otherwise.
The rights conferred on any person by this Article shall not be exclusive of any other rights
which such person may have or hereafter acquire under any statute, provision of the corporations
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certificate of incorporation, these bylaws, agreement, vote of the stockholders or disinterested
directors or otherwise.
Any repeal or modification of the foregoing provisions of this Article shall not adversely
affect any right or protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
9.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the maximum extent and in the manner permitted by the
DGCL as the same now exists or may hereafter be amended, to indemnify any person other than a
director or officer (as such terms are defined in Section 9.1 above) against expenses (including
attorneys fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred
in connection with any threatened, pending or completed action, suit, or proceeding, in which such
person was or is a party or is threatened to be made a party by reason of the fact that such person
is or was an employee or agent of the corporation. For purposes of
this Section 9.2, an employee
or agent of the corporation (other than a director or officer, as such terms are defined in
Section 9.1 above) shall mean any person (i) who is or was an employee or agent of the corporation,
(ii) who is or was serving at the request of the corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or (iii) who was an employee or
agent of a corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
9.3 INSURANCE
The corporation may purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability under the
provisions of the DGCL.
9.4 EXPENSES
The corporation shall advance to any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was a
director or officer of the corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust or other enterprise,
prior to the final disposition of the proceeding, promptly following request therefor, all expenses
incurred by any such director or officer in connection with such proceeding, upon receipt of an
undertaking by or on behalf of such person to repay said amounts if it should be determined
ultimately that such person is not entitled to be indemnified under this bylaw or otherwise;
provided, however, that the corporation shall not be required to advance expenses to any such
director or officer in connection with any proceeding (or part thereof) initiated by such person
unless the proceeding was authorized in advance by the Board.
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Notwithstanding
the foregoing, unless otherwise determined pursuant to
Section 9.5, no advance
shall be made by the corporation to an officer of the corporation (except by reason of the fact
that such officer is or was a director of the corporation in which event this paragraph shall not
apply) in any action, suit or proceeding, whether civil, criminal, administrative or investigative,
if a determination is reasonably and promptly made (i) by the Board by a majority vote of a quorum
consisting of directors who were not parties to the proceeding, or (ii) if such quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, that the facts known to the decision-making party at the time
such determination is made demonstrate clearly and
convincingly that such person acted in bad faith or in a manner that such person did not
believe to be in or not opposed to the best interests of the corporation.
9.5 NON-EXCLUSIVITY OF RIGHTS
The rights conferred on any person by this bylaw shall not be exclusive of any other right
which such person may have or hereafter acquire under any statute, provision of the certificate of
incorporation, bylaws, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity while holding
office. The corporation is specifically authorized to enter into individual contracts with any or
all of its directors, officers, employees or agents respecting indemnification and advances, to the
fullest extent not prohibited by the DGCL.
9.6 SURVIVAL OF RIGHTS
The rights conferred on any person by this bylaw shall continue as to a person who has ceased
to be a director, officer, employee or other agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
9.7 AMENDMENTS
Any repeal or modification of this bylaw shall only be prospective and shall not affect the
rights under this bylaw in effect at the time of the alleged occurrence of any action or omission
to act that is the cause of any proceeding against any agent of the corporation.
ARTICLE X AMENDMENTS
These bylaws may be adopted, amended or repealed by the stockholders of the corporation.
However, the corporation may, in its certificate of incorporation, confer the power to adopt, amend
or repeal these bylaws upon the directors. The fact that such power has been so conferred upon the
directors shall not divest the stockholders of the power, nor limit their power, to adopt, amend or
repeal these bylaws as set forth above.
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