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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 13, 2008
Biogen Idec Inc.
(Exact name of registrant as specified in its charter)
| Delaware (State or other jurisdiction of incorporation) |
0-19311 (Commission file number) |
33-0112644 (IRS Employer Identification No.) |
| 14 Cambridge Center, Cambridge, Massachusetts (Address of principal executive offices) |
02142 (Zip Code) |
Registrant’s telephone number, including area code (617) 679-2000
Not Applicable
(Former name or former address, if changed since last report)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item 1.01 Entry into a Material Definitive Agreement.
On October 13, 2008, the Board of Directors approved the form of indemnification agreement for
the directors of Biogen Idec Inc. (the “Company”). The
Company expects each of its directors to execute
this indemnification agreement, substantially in the form approved.
Under the form of indemnification agreement:
| • | Directors are indemnified against expenses, judgments and other losses resulting from being a party to, or otherwise participating in, any legal proceeding by virtue of having served as a director of the Company. For proceedings brought by or on behalf of the Company, indemnification is limited to expenses incurred by directors in connection with such proceedings. | |
| • | The Company will advance expenses incurred by directors in defending against such proceedings. | |
| • | Indemnification is not available for acts constituting bad faith, for proceedings brought by a director (other than to enforce his or her rights under the indemnification agreement), or to the extent prohibited by applicable law. | |
| • | If indemnification is unavailable to a director with respect to a claim for which the Company is jointly liable, the Company will contribute to the expenses, judgments and other losses incurred by a director in proportion to the relative benefits received by, and the relative fault of, the Company and the director in connection with the events giving rise to such losses. |
The foregoing description is qualified in its entirety by reference to the form of
indemnification agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On October 13, 2008, the Board of Directors adopted the following amendments to the Company’s
Amended and Restated Bylaws:
| • | Sections 2.2, 3.1. A stockholder proposing business or nominating persons for election to the Board of Directors at an annual meeting of stockholders must include the following additional information in its advance notice to the Company: (1) any warrants, options or other derivative instruments relating to the Company’s stock that are held by such stockholder, (2) any agreements such stockholder has with respect to the business proposal, (3) any voting commitment by such stockholder’s director nominee, and (4) whether such stockholder is part of a group that intends to deliver a proxy statement or solicit proxies. | |
| • | Section 2.8. The Chairman of the Board, in addition to the stockholders, may adjourn a meeting of stockholders, whether or not a quorum is present. |
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| • | Sections 2.11, 2.14. Any stockholder intending to initiate a consent solicitation must notify the Board of Directors of such intent so that the Board of Directors can set a record date for the consent solicitation. The Company may appoint an inspector of written consents for such consent solicitation. | |
| • | Section 3.1. A stockholder may nominate persons for election to newly-created Board seats at an annual meeting of stockholders during a specified period if there is no public announcement of the additional nominees at least 100 days before the anniversary of the proxy filing for the previous annual meeting. In addition, a stockholder may nominate persons for election to the Board of Directors at any special meeting at which directors are to be elected pursuant to the Company’s notice of meeting in accordance with procedures similar to those that apply to annual meetings of stockholders. | |
| • | Section 3.6. In place of the requirement to hold an annual organizational meeting promptly following the annual meeting of stockholders, the Board of Directors is given the flexibility to hold its annual organizational meeting at such time and place as it determines. | |
| • | Sections 6.1, 6.2, 6.6. Additional procedures are set forth for (1) determining a director’s or officer’s entitlement to indemnification and selecting independent counsel as part of such determination, (2) the Company assuming the defense of claims against an indemnified individual and (3) paying indemnification claims. |
The Board of Directors also adopted minor, clarifying amendments to other sections of the Bylaws and restated them in their entirety as the Company’s Second Amended and Restated Bylaws.
The foregoing description is qualified in its entirety by reference to the marked copy of the
Company’s Second Amended and Restated Bylaws, which is filed as Exhibit 3.1 to this Current Report
on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
The exhibits listed on the Exhibit Index immediately preceding such exhibits are filed as part
of this Current Report on Form 8-K.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Biogen Idec Inc. |
||||
| By: | /s/ Robert A. Licht | |||
| Robert A. Licht | ||||
| Vice President and Assistant Secretary | ||||
Date: October 17, 2008
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EXHIBIT INDEX
| Exhibit | ||
| Number | Description | |
3.1
|
Second Amended and Restated Bylaws (marked). Filed herewith. | |
10.1
|
Form of indemnification agreement for directors. Filed herewith. |
Exhibit 3.1
SECOND AMENDED AND RESTATED
BYLAWS
OF
BIOGEN IDEC INC.
(Adopted
as of October 13, 2008)
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| Page | ||||
ARTICLE 1 Offices |
1 | |||
1.1 Registered Office |
1 | |||
1.2 Other Offices |
1 | |||
ARTICLE 2 Meeting of Stockholders |
1 | |||
2.1 Place of Meeting |
1 | |||
2.2 Annual Meeting |
1 | |||
2.3 Special Meetings |
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2.4 Notice of Meetings |
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2.5 List of Stockholders |
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2.6 Organization and Conduct of Business |
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2.7 Quorum |
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2.8 Adjournments |
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2.9 Voting Rights |
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2.10 Majority Vote |
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2.11 Record Date for Stockholder Notice, Voting |
6 | |||
2.12 Proxies |
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2.13 Inspectors of Election |
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2.14
Inspectors of Written Consent |
8 | |||
ARTICLE 3 Directors |
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3.1 Number, Election, Tenure and Qualifications |
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3.2 Enlargement and Vacancies |
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3.3 Resignation and Removal |
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3.4 Powers |
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3.5 Place of Meetings |
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3.6
|
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3.7 Regular Meetings |
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3.8 Special Meetings |
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3.9 Quorum, Action at Meeting, Adjournments |
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3.10 Action Without Meeting |
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3.11 Telephone Meetings |
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3.12 Committees |
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3.13 Fees and Compensation of Directors |
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3.14 Rights of Inspection |
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3.15 Lead Director |
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ARTICLE 4 Officers |
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4.1 Officers Designated |
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4.2 Appointment |
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4.3 Tenure |
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4.4 Chairman and Vice Chairman |
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4.5 The Chief Executive Officer |
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4.6 The President |
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(continued)
(continued)
| Page | ||||
4.7 The Vice President |
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4.8 The Secretary |
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4.9 The Assistant Secretary |
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4.10 The Chief Financial Officer |
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4.11 The Treasurer and Assistant Treasurers |
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4.12 Bond |
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ARTICLE 5 Notices |
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5.1 Delivery |
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5.2 Waiver of Notice |
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ARTICLE 6 Indemnification and Insurance |
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6.1 Indemnification |
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6.2 Advance Payment |
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6.3 Non-Exclusivity and Survival of Rights; Amendments |
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6.4 Insurance |
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6.5 Severability |
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6.6 Definitions |
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6.7 Notices |
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ARTICLE 7 Capital Stock |
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7.1 Certificates for Shares |
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7.2 Signatures on Certificates |
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7.3 Transfer of Stock |
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7.4 Registered Stockholders |
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7.5 Lost, Stolen or Destroyed Certificates |
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ARTICLE 8 General Provisions |
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8.1 Dividends |
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8.2 Dividend Reserve |
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8.3 Checks |
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8.4 Fiscal Year |
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8.5 Corporate Seal |
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8.6 Execution of Corporate Contracts and Instruments |
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8.7 Representation of Shares of Other Corporations |
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ARTICLE 9 Amendments |
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SECOND
AMENDED AND RESTATED
BYLAWS
OF
BIOGEN IDEC INC.
(a Delaware corporation)
(Adopted
as of October 13, 2008)
ARTICLE 1
Offices
1.1 Registered Office
The registered office of the corporation shall be set forth in the certificate of
incorporation of the corporation.
1.2 Other Offices
The corporation may also have offices at such other places, either within or without the State
of Delaware, as the Board of Directors (the “Board”) may from time to time designate or the
business of the corporation may require.
ARTICLE 2
Meeting of Stockholders
2.1 Place of Meeting
Meetings of stockholders may be held at such place, either within or without of the State of
Delaware, as may be designated by or in the manner provided in these bylaws, or, if not so
designated, as determined by the Board.
2.2 Annual Meeting
Annual meetings of stockholders shall be held each year at such place, date and time as shall
be designated from time to time by the Board and stated in the notice of the meeting. At each such
annual meeting, the stockholders shall elect by a plurality vote the number of directors equal to
the number of directors of the class whose term expires at such meeting (or, if fewer, the number
of directors properly nominated and qualified for election) to hold office until the third
succeeding annual meeting of stockholders after their
election and until their successors are duly
elected and qualified or until their earlier resignation, removal
from office, death or incapacity.
The stockholders shall also transact such other business as may properly be brought before the
meeting.
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To
be properly brought before the annual meeting, businessnominations of persons for election
to the Board must be made in accordance with the procedures set forth
in Section 3.1.
To be properly brought before the annual meeting, business other than nominations of persons
for election to the Board must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board or the Chairman of the Board or the Chief
Executive Officer, (b) otherwise properly brought before the meeting by or at the direction of the
Board (or any committee
thereof) or the Chairman of the Board or the Chief Executive Officer, or
(c) otherwise properly brought before the meeting by a stockholder of record. A motion related to
business proposed to be brought before any stockholders’ meeting may be made by any stockholder
entitled to vote if the business proposed is otherwise proper to be brought before the meeting.
However, any of the corporation at the time the notice provided for in this Section 2.2 is
delivered to the Secretary of the corporation, who is entitled to vote at the meeting and who
otherwise complies with this Section 2.2. For any proposed business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) above of this paragraph, the proposed
business must constitute a proper matter for stockholder action.
Any such stockholder may propose
business to be brought before a meeting only if such stockholder has given timely notice to the
Secretary of the corporation in proper written form of the stockholder’s intent to propose such
business. To be timely, the stockholder’s notice must be delivered by a nationally recognized
courier service or mailed by first class United States mail, postage or delivery charges prepaid,
and received at the principal executive offices of the corporation addressed to the attention of
the Secretary of the corporation not
earlierless than ninety (90) days nor more than one hundred
twenty (120) days in advance of the date the corporation’s proxy statement was released to the
stockholders in connection with the previous year’s 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 contemplated at the
time of the previous year’s proxy statement, notice by the stockholder must be received by the
Secretary of the corporation not earlier than the close of business on the one hundred twentieth
(120th) day prior to such annual meeting and not later than the close of business on the later of
(x) the ninetieth (90th) day prior to such annual meeting and
(y) the
seventhtenth
(7 10th) day
following the day on which public announcement of the date of such meeting is first made. For the
purposes of these bylaws, “public announcement” shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or a comparable national news service or in a
document publicly filed by the corporation with the Securities and Exchange Commission. In no
event shall the public announcement of an adjournment or postponement of an annual meeting commence
a new time period (or extend any time period) for the giving of stockholder’s notice as described
above. A stockholder’s notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting, the text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event that such business includes a proposal to
amend these bylaws, the language of the proposed amendment), and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of the stockholder proposing such
business and the beneficial owner, if any, on whose behalf the proposal is made, (iii) the class,
series and number of shares of the corporation that are owned beneficially and of record by the
stockholder and such beneficial owner,
(iv) and a representation that the stockholder will notify
the corporation in writing of the class and number of such shares owned beneficially and of record
as of the record date for the meeting promptly following the later of the record date or the date
notice of the record date is first publicly disclosed, (iv) any option, warrant, convertible
security, stock appreciation right, or similar right with an exercise or conversion privilege or a
settlement payment or mechanism at a price
2
related to any class or series of shares of the corporation or with a value derived in whole
or in part from the value of any class or series of shares of the corporation, whether or not such
instrument or right shall be subject to settlement in the underlying class or series of capital
stock of the corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned
beneficially by such stockholder and any other direct or indirect opportunity to profit or share in
any profit derived from any increase or decrease in the value of shares of the corporation and a
representation that the stockholder will notify the corporation in writing of any such Derivative
Instrument in effect as of the record date for the meeting promptly following the later of the
record date or the date notice of the record date is first publicly disclosed, (v) a description of
any agreement, arrangement or understanding with respect to the proposal of business between or
among such stockholder and such beneficial owner, any of their respective affiliates or associates,
and any others acting in concert with any of the foregoing and a representation that the
stockholder will notify the corporation in writing of any such agreements, arrangements or
understandings in effect as of the record date for the meeting promptly following the later of the
record date or the date notice of the record date is first publicly disclosed, (vi) a description
of any material interest of the stockholder in such business, and (vand the beneficial owner, if
any, on whose behalf the proposal is made, in such business, (vii) a representation that the
stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to propose such business, (viii) a
representation whether the stockholder or the beneficial owner, if any, intends or is part of a
group which intends (a) to deliver a proxy statement and/or form of proxy to holders of at least
the percentage of the corporation’s outstanding capital stock required to approve or adopt the
proposal and/or (b) otherwise to solicit proxies from stockholders in support of such proposal and
(ix) any other information that is required to be provided by the stockholder pursuant to Section
14 of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder
(collectively, the “1934 Act”) in such stockholder’s capacity as a proponent of a stockholder
proposal.
Notwithstanding anything in these bylaws to the contrary, no business shall be conducted at
the annual meeting except in accordance with the procedures set forth
in this Section 2.2 2.2, and
no nominations shall be considered at an annual or special meeting of stockholders except in
accordance with the procedures set forth in Section 3.1 below; provided, however, that nothing
inthe foregoing
notice requirements of this Section 2.2 shall be deemed to preclude
discussionsatisfied by any stockholder of any business properly brought before the annual meeting.a
stockholder with respect to business other than a nomination if the stockholder has notified the
corporation of his, her or its intention to present a proposal at an annual meeting in compliance
with applicable rules and regulations promulgated under the 1934 Act and such stockholder’s
proposal has been included in a proxy statement that has been prepared by the corporation to
solicit proxies for such annual meeting.
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appear at the annual or special meeting of stockholders of the corporation to present proposed
business, such proposed business shall not be transacted, notwithstanding that proxies in respect
of such proposed business may have been received by the corporation. For purposes of this Section
2.2, to be considered a qualified representative of the stockholder, a person must be a duly
authorized officer, manager or partner of such stockholder or must be authorized by a writing
executed by such stockholder or an electronic transmission delivered by such stockholder to act for
such stockholder as proxy at the meeting of stockholders and such person must produce such writing
or electronic transmission, or a reliable reproduction of the writing or electronic transmission,
at the meeting of stockholders.
Notwithstanding the foregoing provisions of this Section 2.2 or Section 3.1, a stockholder
shall also comply with all applicable requirements of the 1934 Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.2 or Section 3.1; provided
however, that any references in these bylaws to the 1934 Act or the rules promulgated thereunder
are not intended to and shall not limit any requirements applicable to nominations or proposals as
to any other business to be considered pursuant to this Section 2.2 or Section 3.1 (including
clause (c) of the third paragraph hereof, clause (c) of the third paragraph of Section 3.1 and the
sixth paragraph of Section 3.1), and compliance with clause (c) of the third paragraph of this
Section 2.2, clause (c) of the third paragraph of Section 3.1 or the sixth paragraph of Section 3.1
shall be the exclusive means for a stockholder to make nominations or submit other business (other
than, as provided in the fourth paragraph of this Section 2.2, matters brought properly under and
in compliance with Rule 14a-8 of the 1934 Act, as may be amended from time to time). Nothing in
this Section 2.2 shall be deemed to affect any rights of stockholders to request inclusion of
proposals in the corporation’s proxy statement pursuant to applicable rules and regulations
promulgated under the 1934 Act.
2.3 Special Meetings
Special meetings of the stockholders may be called for any purpose or purposes, unless
otherwise prescribed by statute or by the certificate of incorporation, by the Secretary only at
the request of the Chairman of the Board, the Chief Executive Officer or by a resolution duly
adopted by the affirmative vote of a majority of the Board. Such request shall state the purpose
or purposes of the proposed meeting. Business transacted at any special meeting shall be limited
to matters relating to the purpose or purposes stated in the notice of meeting.
2.4 Notice of Meetings
Except as otherwise provided by law, written notice of each meeting of stockholders, annual or
special, stating the place, if any, date and time of the meeting, 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 meeting, and, in the case of a special meeting, the purpose or purposes for
which such special meeting is called, shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting.
When a meeting is adjourned to another place, date or time, notice need not be given of the
adjourned meeting if the place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the date of any adjourned meeting is more than
thirty (30) days after the date for which the meeting was originally noticed, or if a new record
date is fixed for the adjourned meeting, written notice of the place, if any, date, time and means
of remote communications, if any, of the adjourned meeting shall be given in conformity
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herewith. At any adjourned meeting, any business may be transacted that might have been
transacted at the original meeting.
2.5 List of Stockholders
The officer in charge of the stock ledger of the corporation or the transfer agent shall
prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, for a period of at least ten
(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
principal place of business of the corporation. If the meeting is to be held at a place, then the
list shall also be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the meeting is to be held
solely by means of remote communication, then the list shall 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 gain access to such list shall be provided with the notice of the
meeting.
2.6 Organization and Conduct of Business
The Chairman of the Board or, in his or her absence, the Chief Executive Officer or President
of the corporation or, in their absence, such person as the Board may have designated or, in the
absence of such a person, such person as may be chosen by the holders of a majority of the shares
entitled to vote who are present, in person or by proxy, shall call to order any meeting of the
stockholders and act as chairman of the meeting. In the absence of the Secretary of the
corporation, the secretary of the meeting shall be such person as the chairman of the meeting
appoints.
The chairman 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
discussion as seems to him or her in order.
2.7 Quorum
Except where otherwise provided by law or the certificate of incorporation of the corporation
or these bylaws, the holders of a majority of the stock issued and outstanding and entitled to
vote, present in person or represented in proxy, shall constitute a quorum at all meetings of the
stockholders.
2.8 Adjournments
Any meeting of stockholders may be adjourned from time to time to any other time and to any
other place at which a meeting of stockholders may be held under these bylaws, which time and place
shall be announced at the meeting, by
either the Chairman of
the Board or a majority of the
stockholders present in person or represented by proxy at the meeting and entitled to vote, though
less thanwhether
or not a quorum, or, if no stockholder is present or represented by proxy, by any
officer entitled to preside at or to act as secretary of such
meetingis
present, without notice
other than announcement at the meeting, until a quorum shall be
5
2.9 Voting Rights
Unless otherwise provided in the certificate of incorporation of the corporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote for each share of
the capital stock having voting power held by such stockholder.
2.10 Majority Vote
When a quorum is present at any meeting, the vote of the holders of a majority of the stock
having voting power present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express provision of the
statutesstatute or of the certificate of incorporation of the corporation or of these bylaws, a
different vote is required in which case such express provision shall govern and control the
decision of such question.
2.11 Record Date for Stockholder Notice, Voting and, Payment and Written Consent
(a) For purposes of determining 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 right in
respect of any change, conversion or exchange of stock or for the purpose of any other lawful
action (other than the taking of action by written consent of the stockholders without a meeting
which is governed by Section 2.11(b) below), the Board may fix, in advance, a record date, which
shall not be more than sixty (60) days nor fewerless than ten (10) days before the date of any such
meeting nor more than sixty (60) days before any other action to which the record date relates. 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. If the Board does not so fix a record date, then:
(ai) 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 business day next preceding the day on which
notice is given or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held; and (bii) 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 to such purpose.
(b) For purposes of determining the stockholders entitled to consent to corporate
action in writing without a meeting, the Board may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by the Board, and
which date shall not be more than ten (10) days after the date upon which the resolution fixing the
record date is adopted by the Board. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice to the Secretary,
request the Board to fix a record date. The Board shall, within ten (10) days after the date on
which such written notice is received, adopt a resolution fixing the record date. If no record
date has been fixed by the Board within ten (10) days after receipt of such written notice, when no
prior action by the Board is required by applicable law, the record date for determining
6
stockholders entitled to consent to corporate action in writing without a meeting shall be the
first date on which a signed written consent setting forth the action taken or proposed to be taken
is delivered to the corporation by delivery to its registered office in the State of Delaware, its
principal place of business or an officer or agent of the corporation having custody of the book in
which proceedings of meetings of stockholders are recorded, to the attention of the Secretary.
Delivery shall be by hand or by certified or registered mail, return receipt requested. If no
record date has been fixed by the Board and prior action by the Board is required by applicable
law, the record date for determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the day on which the Board adopts
the resolution taking such prior action.
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, but no such proxy shall be voted or acted upon after
three (3) years from its date unless the proxy provides for a longer period. All proxies must be
filed with the Secretary of the corporation at the beginning of each meeting in order to be counted
in any vote at the meeting. Subject to the limitation set forth in the last clause of the first
sentence of this Section 2.12, a duly executed proxy that does not state that it is irrevocable
shall continue in full force and effect unless (i) revoked by the person executing it, before the
vote pursuant to that proxy, by a writing delivered to the corporation stating that the proxy is
revoked or by a subsequent proxy executed by, or attendance at the meeting and voting in person by,
the person executing the proxy, or (ii) written notice of the death or incapacity of the maker of
that proxy is received by the corporation before the vote pursuant to that proxy is counted.
2.13 Inspectors of Election
The corporation shall, in advance of any meeting of stockholders, appoint one or more
inspectors of election to act at the meeting and make a written report thereof. The corporation
may designate one or more persons to act as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and according to the best of
his or her ability.
2.14 Inspectors of Written Consent
In the event of the delivery, in the manner prescribed by law or in these bylaws, to the
corporation of the requisite written consent or consents to take corporate action or any related
revocations thereof, the corporation may designate one or more persons for the purpose of promptly
performing a ministerial review of the validity of such consents and revocations. The corporation
may designate one or more persons to act as alternate inspectors to replace any inspector who fails
to act. Each inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and according to the best of
his or her ability. For the purpose of permitting the inspectors to perform such review, no action
by written consent without a meeting shall be effective until such date as the independent
inspectors certify to the corporation that the consents delivered to the corporation in accordance
with applicable law and these bylaws represent at least the minimum number of votes that would be
necessary to take the corporate action. Nothing contained in this Section
7
2.14 shall affect the right of the Board or any stockholder to contest the validity of any
consent or revocation thereof, whether before or after such certification by the independent
inspectors, or to take any other action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto, and the seeking of injunctive relief
in such litigation).
ARTICLE 3
Directors
3.1 Number, Election, Tenure and Qualifications
The number of directors that shall constitute the entire Board initially shall be twelve (12);
provided, however, that the number of directors that shall constitute the entire Board shall be
fixed from time to time by resolution adopted by a majority of the entire Board. The classes of
directors that shall constitute the entire Board shall be as provided in the certificate of
incorporation of the corporation.
The directors shall be elected at the annual meetings of the stockholders, except as otherwise
provided in Section 3.2 below, and each director elected shall hold office until such director’s
successor is elected and qualified, unless sooner displaced.
Subject to the rights of holders of any class or series of preferred stock, nominations of
persons for election to the Board by or at the direction of the Board may be made by any nominating
committee or person appointed by the Board; nominations may also be made by any(a) pursuant to the
corporation’s notice of meeting (or any supplement thereto), (b) by or at the direction of the
Board or any committee thereof, or (c) by any stockholder of the corporation who was a stockholder
of record at the time the notice provided for in this Section 3.1 is delivered to the Secretary of
the corporation, who is entitled to vote for the election of directors at the applicable
meeting and who complies with the notice procedures set forth in this Section 3.1. 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. To be timely, a stockholder’s notice shall be
delivered by a nationally recognized courier service or mailed by first class United States mail,
postage or delivery charges prepaid, and received at the principal executive offices of the
corporation addressed to the attention of the Secretary of the corporation not earlierless than
ninety (90) days nor more than one hundred twenty (120) days in advance of the date the
corporation’s proxy statement was released to the stockholders in connection with the previous
year’s 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 contemplated at the time of the previous year’s proxy statement,
notice by the stockholder must be received by the Secretary of the corporation not earlier than the
close of business on the one hundred twentieth (120th) day prior to such annual meeting and not
later than the close of business on the later of (x) the ninetieth (90th) day prior to such annual
meeting and (y) the seventhtenth (710th) day following the day on which public announcement of the
date of such meeting is first made. In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time period) for the
giving of a stockholder’s notice as described above. Such stockholder’s notice to the Secretary
shall set forth (a) as to each person whom the stockholder proposes to nominate for election or
reelection as a director, (i) the name, age, business address and residence address of the person,
(ii) the principal occupation or employment of the person, (iii) the class, series and number of
shares of capital
8
stock of
the corporation that are owned beneficially and of record by the person, (iv) a
statement as to the person’s citizenship, and (v) the completed and signed representation and
agreement described below, (vi) any other information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors pursuant to Section 14 of the 1934
Act, and (vii) such person’s written consent to being named in the proxy statement as a nominee and
to serving as a director if elected, and (b) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination is made, (i) the name and record address
of the stockholder and of such beneficial owner, if any, (ii) the class, series and number of
shares of capital stock of the corporation that are owned beneficially by the stockholderand of
record by the stockholder and such beneficial owner and a representation that the stockholder will
notify the corporation in writing of the class and number of such shares owned beneficially and of
record as of the record date for the meeting promptly following the later of the record date or the
date notice of the record date is first publicly disclosed, (iii) any Derivative Instrument
directly or indirectly owned beneficially by such stockholder and any other direct or indirect
opportunity to profit or share in any profit derived from any increase or decrease in the value of
shares of the corporation and a representation that the stockholder will notify the corporation in
writing of any such Derivative Instrument in effect as of the record date for the meeting promptly
following the later of the record date or the date notice of the record date is first publicly
disclosed, (iv) a description of any agreement, arrangement or understanding with respect to the
nomination between or among such stockholder and such beneficial owner, any of their respective
affiliates or associates, and any others acting in concert with any of the foregoing and a
representation that the stockholder will notify the corporation in writing of any such agreements,
arrangements or understandings in effect as of the record date for the meeting promptly following
the later of the record date or the date notice of the record date is first publicly disclosed, (v)
a representation that the stockholder is a holder of record of stock of the corporation entitled to
vote at such meeting and intends to appear in person or by proxy at the meeting to propose such
nomination, and (vi) a representation whether the stockholder or the beneficial owner, if any,
intends or is part of a group which intends (a) to deliver a proxy statement and/or form of proxy
to holders of at least the percentage of the corporation’s outstanding capital stock required to
elect the nominee and/or (b) otherwise to solicit proxies from stockholders in support of such
nomination. The corporation may require any proposed nominee to furnish such other information as
may reasonably be required by the corporation to determine the eligibility of such proposed nominee
to serve as director of the corporation.
To be eligible to be a nominee for election or reelection as a director of the corporation, a
person must deliver (in accordance with the time periods prescribed for delivery of notice under
this Section 3.1) to the Secretary of the corporation at the principal executive offices of the
corporation a written representation and agreement (in the form provided by the Secretary upon
written request) that such person (i) is not and will not become a party to (A) any agreement,
arrangement or understanding with, and has not given any commitment or assurance to, any person or
entity as to how such person, if elected as a director of the corporation, will act or vote on any
issue or question (a “Voting Commitment”) that has not been disclosed to the corporation or (B) any
Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as
a director of the corporation, with such person’s fiduciary duties under applicable law, (ii) is
not and will not become a party to any agreement, arrangement or understanding with any person or
entity other than the corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director that has not
been disclosed therein, and (iii) in such person’s individual capacity and on behalf of any person
or entity on whose behalf the nomination is being made, would be in compliance, if elected as a
director of the corporation, and will comply with, applicable law and all applicable publicly
disclosed corporate governance, conflict of
9
interest, confidentiality and stock ownership and trading policies and guidelines of the
corporation.
Notwithstanding anything in the third sentence of the third paragraph of this Section 3.1 to
the contrary, in the event that the number of directors to be elected to the Board is increased
effective at the annual meeting and there is no public announcement by the corporation naming the
nominees for the additional directorships at least one hundred (100) days prior to the first
anniversary of the date the corporation’s proxy statement was released to the stockholders in
connection with the previous year’s annual meeting of stockholders, a stockholder’s notice required
by this Section 3.1 shall also be considered timely, but only with respect to nominees for the
additional directorships, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the tenth (10th) day following
the day on which such public announcement is first made by the Corporation.
Nominations of persons for election to the Board may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the corporation’s notice of meeting
(1) by or at the direction of the Board or any committee thereof or (2) provided that the Board
has determined that directors shall be elected at such meeting, by any stockholder of the
corporation who is a stockholder of record at the time the notice provided for in this Section 3.1
is delivered to the Secretary of the corporation, who is entitled to vote at the meeting and upon
such election and who complies with the notice procedures set forth in this Section 3.1. In the
event the corporation calls a special meeting of stockholders for the purpose of electing one or
more directors to the Board, any such stockholder entitled to vote in such election of directors
may nominate a person or persons (as the case may be) for election to such position(s) as specified
in the corporation’s notice of meeting, if the stockholder’s notice required by the third paragraph
of this Section 3.1 shall be delivered to the Secretary at the principal executive offices of the
corporation not earlier than the close of business on the one hundred twentieth (120th) day prior
to such special meeting and not later than the close of business on the later of the ninetieth
(90th) day prior to such special meeting or the tenth (10th) day following the day on which public
announcement is first made of the date of the special meeting and of the nominees proposed by the
Board to be elected at such meeting. In no event shall the public announcement of an adjournment
or postponement of a special meeting commence a new time period (or extend any time period) for the
giving of a stockholder’s notice as described above.
No person shall be eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth herein.
In connection with any annual meeting of the stockholders (or, if and as applicable, any
special meeting of the stockholders), the Chairman of the Board (or such other person presiding at
such meeting in accordance with these bylaws) shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the foregoing procedure (including
whether the stockholder or beneficial owner, if any, on whose behalf the nomination is made
solicited (or is part of a group which solicited) or did not so solicit, as the case may be,
proxies in support of such stockholder’s nominee in compliance with such stockholder’s
representation as required by clause (vi) above of this Section 3.1), and if he or she should so
determine, he or she shall so declare to the meeting and the defective nomination shall be
disregarded. Notwithstanding the foregoing provisions of this Section 3.1, unless otherwise
required by law, if the stockholder (or a qualified representative of the stockholder)
10
does not appear at the annual or special meeting of stockholders of the corporation to present
a nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such
vote may have been received by the corporation. For purposes of this Section 3.1, to be considered
a qualified representative of the stockholder, a person must be a duly authorized officer, manager
or partner of such stockholder or must be authorized by a writing executed by such stockholder or
an electronic transmission delivered by such stockholder to act for such stockholder as proxy at
the meeting of stockholders and such person must produce such writing or electronic transmission,
or a reliable reproduction of the writing or electronic transmission, at the meeting of
stockholders.
3.2 Enlargement and Vacancies
The number of members of the Board may be increased at any time as provided in Section 3.1
above. Sole power to fill vacancies and newly created directorships resulting from any increase in
the authorized number of directors shall be vested in the Board, and each director so chosen shall
hold office until the next annual election at which the term of the class to which they have been
elected expires and until such director’s successor is duly elected and qualified or until such
director’s earlier resignation, removal from office, death or incapacity. If there are no
directors in office, then an election of directors may be held in the manner provided by statute.
In the event of one or more vacancies in the Board, the remaining directors, except as otherwise
provided by law or these bylaws, may exercise the powers of the full board until the vacancies are
filled.
3.3 Resignation and Removal
Any director may resign at any time upon written notice to the corporation at its principal
place of business or to the Chief Executive Officer or the Secretary. Such resignation shall be
effective upon receipt of such notice unless the notice specifies such resignation to be effective
at some other time or upon the happening of some other event. Any director or the entire Board may
be removed, but only for cause, by the holders of a majority of the shares then entitled to vote at
an election of directors, unless otherwise specified in the certificate of incorporation of the
corporation.
3.4 Powers
The business of the corporation shall be managed by or under the direction of the Board, which
may exercise all such powers of the corporation and do all such lawful acts and things as are not
by statute or by the certificate of incorporation of the corporation or by these bylaws directed or
required to be exercised or done by the stockholders.
3.5 Place of Meetings
The Board may hold meetings, both regular and special, either within or without the State of
Delaware.
3.6
AnnualOrganizational Meetings
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and the
transaction of other business. Organizational meetings shall be held at such time and
place as may be determined from time to time by the Board.
3.7 Regular Meetings
Regular meetings of the Board may be held without notice at such time and place as may be
determined from time to time by the Board; provided that any director who is absent when such a
determination is made shall be given prompt notice of such determination.
3.8 Special Meetings
Special meetings of the Board may be called by the Chairman of the Board, the Lead Director
(if any), the Chief Executive Officer or the President, or by the Secretary on the written request
of two or more directors, or by one director in the event that there is only one director in
office. Notice of the time and place, if any, of special meetings shall be delivered personally or
by telephone to each director, or sent by first-class mail or commercial delivery service,
facsimile transmission, or by electronic mail or other electronic means, charges prepaid, to such
director’s business or home address as they appear upon the records of the corporation. In case
such notice is mailed, at least two (2) days’ notice shall be provided to each director prior to
the time of holding of the meeting. In case such notice is delivered personally or by telephone or
by commercial delivery service, facsimile transmission, or electronic mail or other electronic
means, at least forty-eight (48) hours’ notice shall be provided to each director prior to the time
of the holding of the meeting. A notice or waiver of notice of a meeting of the Board need not
specify the purposes of the meeting.
3.9 Quorum, Action at Meeting, Adjournments
At all meetings of the Board, a majority of directors then in office, but in no event less
than one-third (1/3) of the entire Board, shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there is a quorum shall
be the act of the Board, except as may be otherwise specifically provided by law or by the
certificate of incorporation of the corporation. For purposes of this Section 3.9, the term
“entire Board” shall mean the number of directors last fixed by directors in accordance with these
bylaws; provided, however, that if fewer than all the number of directors so fixed have been
elected (by the stockholders or the Board), the “entire Board” shall mean the greatest number of
directors so elected to hold office at any one time pursuant to such authorization. If a quorum
shall not be present at any meeting of the Board, a majority of the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
3.10 Action Without Meeting
Unless otherwise restricted by the certificate of incorporation of the corporation 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 writings or
electronic transmissions are filed with the minutes of proceedings of the Board or committee.
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3.11 Telephone Meetings
Unless otherwise restricted by the certificate of incorporation of the corporation or these
bylaws, any member of the Board or any committee thereof may participate in a meeting of the Board
or of any committee, as the case may be, by means of conference telephone or by any form of
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.
3.12 Committees
The Board may, by resolution passed by a majority of the whole Board, 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 present at any meeting and not
disqualified from voting, whether or not the member or members present 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, 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 which may require it; but no such committee shall have the power or authority
in reference to (i) approving or adopting, or recommending to the stockholders, any action or
matter expressly required by the General Corporation Law of the State of Delaware (the “DGCL”) to
be submitted to stockholders for approval or (ii) adopting, amending or repealing any of these
bylaws. Any such committee shall have such name as may be determined from time to time by
resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and
make such reports to the Board as the Board may request. Except as the Board may otherwise
determine, any committee may make rules for the conduct of its business, but unless otherwise
provided by the directors or in such rules, its business shall be conducted as nearly as possible
in the same manner as is provided in these bylaws for the conduct of its business by the Board.
3.13 Fees and Compensation of Directors
Unless otherwise restricted by the certificate of incorporation of the corporation or these
bylaws, the Board shall have the authority to fix the compensation of directors. The directors may
be paid their expenses, if any, of attendance at each meeting of the Board and may be paid a fixed
sum for attendance at each meeting of the Board or a stated salary as director, or such other
compensation as may be determined by the Board. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation for attending committee meetings.
3.14 Rights of Inspection
Any director shall have the right to examine the corporation’s stock ledger, a list of its
stockholders and its other books and records for a purpose reasonably related to his or her
position as a director.
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3.15 Lead Director
The Board may designate a Lead Director from among its members from time to time, who shall be
a independent director, with such duties and authority as determined by the Board.
ARTICLE 4
Officers
4.1 Officers Designated
The
officers of the corporation shall be chosen by the Board and shall
beinclude a Chief
Executive Officer, a Secretary and a Chief Financial Officer or Treasurer. The Board may elect
from among its members a Chairman of the Board and a Vice Chairman of the Board. The Board may
also choose a President, one or more Vice Presidents, one or more assistant Secretaries or
assistant Treasurers and such other officers as the Board deems appropriate from time to time. Any
number of offices may be held by the same person, unless the certificate of incorporation of the
corporation or these bylaws otherwise provide.
4.2 Appointment
The
Board at its
firstorganizational meeting after each annual meeting of stockholders shall
choose a Chief Executive Officer, a President, a Secretary and a Chief Financial Officer or
Treasurer. Other officers may be appointed by the Board at such meeting, at any other meeting, or
by written consent, or in such other manner as is determined by the Board.
4.3 Tenure
Each officer of the corporation shall hold office until such officer’s successor is appointed
and qualified, unless a different term is specified in the vote choosing or appointing such
officer, or until such officer’s earlier death, resignation, removal or incapacity. Any officer
may be removed with or without cause at any time by the affirmative vote of a majority of the Board
or a committee duly authorized to do so; provided, however, that until November 12, 2006, the
affirmative vote, at a duly convened meeting of the Board, of at least 80% of the entire Board
(excluding for this purpose directors who are then serving as an officer or employee of the
corporation) shall be required (a) to remove William H. Rastetter, Ph.D. from the office of
Executive Chairman or significantly diminish his position, authority, duties or responsibilities or
(b) to remove James C. Mullen from the office of Chief Executive Officer or President or
significantly diminish his position, authority, duties or responsibilities. Any vacancy occurring
in any office of the corporation may be filled by the Board, at its discretion. Any officer may
resign by delivering such officer’s written resignation to the corporation at its principal place
of business or to the Chief Executive Officer or the Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time or upon the
happening of some other event.
4.4 Chairman and Vice Chairman
The Chairman of the Board, if any, shall preside at all meetings of the Board and of the
stockholders at which he or she shall be present. The Chairman of the Board shall have and may
exercise such powers as are, from time to time, assigned to him or her by the Board and as may be
provided by law. In the absence of the Chairman of the Board, the Vice Chairman of
14
the Board, if any, shall preside at all meetings of the Board and of the stockholders at which
he or she shall be present. The Vice Chairman of the Board shall have and may exercise such powers
as are, from time to time, assigned to him or her by the Board and as may be provided by law.
4.5 The Chief Executive Officer
Subject to such supervisory powers, if any, as may be given by the Board to the Chairman of
the Board, the Chief Executive Officer (who may also be designated by the title of “President”
unless a separate President shall be appointed) shall preside at all meetings of the stockholders
and the Board in the absence of the Chairman of the Board, or if there be none, at all meetings of
the Board, shall have general and active management of the business of the corporation and shall
see that all orders and resolutions of the Board are carried into effect. He or she shall execute
bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed and except where the signing
and execution thereof shall be expressly delegated by the Board to some other officer or agent of
the corporation.
4.6 The President
The President, if any, shall, in the event there be no Chief Executive Officer or in the
absence of the Chief Executive Officer or in the event of his or her disability or refusal to act,
perform the duties of the Chief Executive Officer, and when so acting, shall have the powers of and
be subject to all the restrictions upon the Chief Executive Officer. The President shall perform
such other duties and have such other powers as may from time to time be prescribed for such person
by the Board, the Chairman of the Board, the Chief Executive Officer or these bylaws.
4.7 The Vice President
The Vice President (or in the event there be more than one, the Vice Presidents in the order
designated by the directors, or in the absence of any designation, in the order of their
appointment), shall, in the absence of the President or in the event of his or her disability or
refusal to act, perform the duties of the President, and when so acting, shall have the powers of
and be subject to all the restrictions upon the President. The Vice President(s) shall perform
such other duties and have such other powers as may from time to time be prescribed for them by the
Board, the President, the Chairman of the
Board, the Chief
Executive Officer, the President or
these bylaws.
4.8 The Secretary
The Secretary shall attend all meetings of the Board and the stockholders and record all votes
and the proceedings of the meetings in a book to be kept for that purpose and shall perform like
duties for the standing committees, when required. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and special meetings of the Board, and shall perform such
other duties as may from time to time be prescribed by the Board, the Chairman of the Board or, the
Chief Executive Officer, under whose supervision he or she
shall actthe
President or these bylaws.
The Secretary shall have custody of the seal of the corporation, and the Secretary, or an Assistant
Secretary, shall have authority to affix the same to any instrument requiring it, and, when so
affixed, the seal may be attested by his or her signature or by the signature of such Assistant
Secretary. The Board may give general
15
authority to any other officer to affix the seal of the corporation and to attest the affixing
thereof by his or her signature. The Secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the corporation’s 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, if
any, issued for the same and the number and date of cancellation of every
certificate surrendered for cancellation.
4.9 The Assistant Secretary
The Assistant Secretary, or if there be more than one, any Assistant Secretaries in the order
designated by the Board (or in the absence of any designation, in the order of their appointment)
shall assist the Secretary in the performance of his or her duties and, in the absence of the
Secretary or in the event of his or her inability or refusal to act, perform the duties and
exercise the powers of the Secretary and shall perform such other duties and have such other powers
as may from time to time be prescribed by the Board, the Chairman of the Board, the Chief Executive
Officer, the President or these bylaws.
4.10 The Chief Financial Officer
The Chief Financial Officer (who may also be designated by the separate title of “Treasurer”
unless a separate Treasurer is appointed) shall consider the adequacy of, and make recommendations
concerning, the capital resources available to the corporation to meet it projected obligations and
business plans; report periodically to the Chief Executive Officer and the Board on financial
results and trends affecting the business; have custody of the corporate funds and deposit and pay
out such funds from time to time in such manner as may be prescribed by, or in accordance with the
direction of, the Board; and shall perform such other duties and have such other powers as may from
time to time be prescribed by the Board, the Chairman of the Board, the Chief Executive Officer,
the President or these bylaws.
4.11 The Treasurer and Assistant Treasurers
The Treasurer (if one is appointed) shall, (i) if a Chief Financial Officer is appointed, have
such duties as may be specified by the Chief Financial Officer to assist the Chief Financial
Officer in the performance of his or her duties, and (ii) otherwise perform such duties and have
other powers as may from time to time be prescribed by the Board
or, the
Chairman of the Board, the
Chief Executive Officer,
the President or these bylaws. It shall be the duty of any Assistant
Treasurers to assist the Treasurer in the performance of his or her duties and to perform such
other duties and have other powers as may from time to time be
prescribed by the Board or, the
Chairman of the Board, the Chief Executive
Officer, the President or
these bylaws.
4.12 Bond
If required by the Board, any officer shall give the corporation a bond in such sum and with
such surety or sureties and upon such terms and conditions as shall be satisfactory to the Board,
including without limitation a bond for the faithful performance of the duties of such officer’s
office and for the restoration to the corporation of all books, papers, vouchers, money and other
property of whatever kind in such officer’s possession or under such officer’s control and
belonging to the corporation.
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ARTICLE 5
Notices
5.1 Delivery
Whenever, under the provisions of law, or of the certificate of incorporation of the
corporation or these bylaws, written notice is required to be given to any director or stockholder,
it shall not be construed to mean personal notice, but: (a) such notice may be given by mail,
addressed to such director or stockholder, at such person’s address as it appears on the records of
the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail or delivered to a nationally
recognized courier service; and (b) unless written notice by mail is required by law, such notice
may also be given by commercial delivery service, facsimile transmission, electronic means or
similar means addressed to such director or stockholder at such person’s address as it appears on
the records of the corporation, in which case such notice shall be deemed to be given when
delivered into the control of the persons charged with effecting such transmission, the
transmission charge to be paid by the corporation or the person sending such notice and not by the
addressee. Oral notice or other in-hand delivery, in person or by telephone, shall be deemed given
at the time it is actually given.
5.2 Waiver of Notice
Whenever any notice is required to be given under the provisions of law or of the certificate
of incorporation of the corporation or of these bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. In addition to the foregoing, notice of a meeting need not be given
to any director who signs a waiver of notice or a consent, or electronically transmits the same, to
holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or
who attends the meeting without protesting, prior thereto or at its commencement, the lack of
notice to such director. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
ARTICLE 6
Indemnification and Insurance
6.1 Indemnification
(a) Each person who was or is made a party or is threatened to be made a party to or is
involved in (as a witness
or otherwise) any action, suit or, arbitration, alternate dispute
resolution mechanism, investigation, inquiry, administrative hearing
or any other proceeding,
whether civil, criminal, administrative or investigative
in nature (hereinafter a “proceeding”), by
reason of the fact that he or she or a person of whom he or she is the legal representative (in the
event of death or disability of such person) is or was a director or officer of the corporation (or
any predecessor) or is or was serving at the request of the corporation (or any predecessor) as a
director, officer,
employee, fiduciary,
representative, partner or agent of another corporation or
of a partnership, joint venture, trust, employee benefit plan sponsored or maintained by the
corporation, or other enterprise (or any predecessor of any of such entities),
whether the basis of such proceeding is alleged action
or inaction in an official capacity as
a director, officer,
employee, fiduciary,
representative, partner or agent or in any other capacity
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while
serving as a director,
officer, employee,
fiduciary, representative, partner or agent, shall
be indemnified and held harmless by the corporation to the fullest extent authorized by the DGCL,
as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the corporation to provide broader indemnification rights than
said law permitted the corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties,
and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in
connection therewith; provided, however, that except as provided in Section 6.1(c) below, the
corporation shall indemnify any such person seeking indemnification in connection with a proceeding
(or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized
by the Board. The right to indemnification conferred in this Section 6.1 shall be a contract
right.
subject to the terms and conditions of this Article 6.
(b) To obtain indemnification under this Section 6.1, a claimant shall submit to the
corporation a written request, including therein or therewith such documentation and information as
is reasonably available to the claimant and is reasonably necessary to determine whether and to
what extent the claimant is entitled to
indemnification. provided, however, that the failure of a
claimant to so notify the corporation shall not relieve the corporation of any obligation which it
may have to the claimant under this Section 6.1 or otherwise except to the extent that any delay in
such notification actually and materially prejudices the
corporation. Upon written request by a
claimant for indemnification pursuant to the preceding sentence, a determination, if required by
applicable law, with respect to the claimant’s entitlement thereto shall be made as follows: (i) if
requested by the claimant, by Independent Counsel (as hereinafter defined), or (ii) if no request
is made by the claimant for a determination by Independent Counsel, (A) by the Board by a majority
vote of the Disinterested Directors (as hereinafter defined), even though less than a quorum, or
(B) by a committee of Disinterested Directors designated by majority vote of the Disinterested
Directors, even though less than a quorum, or (C) if there are no Disinterested Directors or the
Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy
of which shall be delivered to the claimant, or (D) if a quorum of Disinterested Directors so
directs, by the stockholders of the corporation. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel at the request of the claimant, the
Independent Counsel shall be selected by the Board unless there shall have occurred within two
years prior to the date of the commencement of the proceeding for which indemnification is claimed
a “Change of Control” (as hereinafter defined), in which case Independent Counsel shall be selected
by the claimant unless the claimant shall request that such selection be made by the Board. If it
is so determined that the claimant is entitled to indemnification, payment to the claimant shall be
made within ten (10) business days after such determination.
In the event the determination of entitlement to indemnification is to be made by Independent
Counsel at the request of the claimant, the Independent Counsel shall be selected by the Board
unless there shall have occurred within two years prior to the date of the commencement of the
proceeding for which indemnification is claimed a “Change of Control” (as hereinafter defined), in
which case Independent Counsel shall be selected by the claimant unless the claimant shall request
that such selection be made by the Board. In either event, the claimant or the corporation, as the
case may be, shall give written notice to the other advising it of the identity of the Independent
Counsel so selected. The party so notified may, within ten (10) days after such written notice of
selection shall have been given, deliver to the corporation
or to the claimant, as the case may be, a written objection to such selection; provided,
however, that such objection may be asserted only on the
ground that the Independent Counsel so
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selected does not meet the requirements of “Independent Counsel” as defined in Section 6.6, and the
objection shall set forth with particularity the factual basis of such assertion. If such written
objection is so made and substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court has determined that
such objection is without merit. If, within thirty (30) days after submission by the claimant of a
written request for indemnification pursuant to Section 6.1(b), no Independent Counsel shall have
been selected and not objected to, either the corporation or the claimant may petition the Court of
Chancery of the State of Delaware for resolution of any objection which shall have been made by the
corporation or the claimant to the other’s selection of Independent Counsel or for the appointment
as Independent Counsel of a person selected by the Court or by such other person as the Court shall
designate, and the person with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel hereunder. The corporation shall pay any and all fees
and expenses of Independent Counsel reasonably incurred in connection with acting pursuant to
Section 6.1(b), and the corporation shall pay all reasonable fees and expenses incident to the
procedures of Section 6.1(b), regardless of the manner in which such Independent Counsel was
selected or appointed. Upon the due commencement of any judicial proceeding pursuant to Section
6.1(c), Independent Counsel shall be discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional conduct
then prevailing).
If the person, persons or entity empowered or selected under this Section 6.1(b) to determine
whether the claimant is entitled to indemnification shall not have made a determination within
ninety (90) days after receipt by the corporation of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been made and the claimant
shall be entitled to such indemnification, absent (i) a misstatement by the claimant of a material
fact, or an omission of a material fact necessary to make the claimant’s statement(s) not
materially misleading, in connection with the request for indemnification or (ii) a prohibition of
such indemnification under applicable law.
If it is determined that the claimant is entitled to indemnification, the corporation shall
pay the claimant within twenty (20) business days after such determination any then known amounts
with respect to which it has been so determined that the claimant is entitled to indemnification
hereunder and will pay any other amounts thereafter incurred for which Indemnitee is entitled to
indemnification within twenty (20) business days of the corporation’s receipt of reasonably
detailed invoices for such amounts.
(c) IfIn the event that (i) a determination is made pursuant to Section 6.1(b) that the
claimant is not entitled to indemnification, (ii) advancement of Expenses is not timely made
pursuant to Section 6.2 or (iii) a claim for the
indemnification under this Section 6.1 is not paid
in full by the corporation within ninety (90) days after a written claim pursuant to Section 6.1(b)
above has been received by the corporationtwenty (20) business days after a determination has been
made that the claimant is entitled to indemnification, the claimant may at any time thereafter
bring suit against the corporation to recover the unpaid amount of the claimdetermine his
entitlement to such indemnification or advancement of Expenses and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. If a
Change of Control shall have occurred, in any judicial proceeding commenced pursuant to this
Section 6.1(c), the corporation shall have the burden of proving that the claimant is not entitled
to indemnification. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been tendered to the
corporation) that the claimant has not met the standard of conduct that makes it permissible
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under the DGCL for the corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the corporation. Neither the failure of the corporation
(including the Board, Independent Counsel or stockholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual
determination bythe fact that the corporation (including the Board, Independent Counsel or
stockholders) has determined that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the claimant has not met the applicable standard of conduct.
(d) If a determination shall have been made pursuant to this Section 6.1 that the claimant is
entitled to indemnification, the corporation shall be bound by such determination in any judicial
proceeding commenced pursuant to Section 6.1(c) above, absent (i) a misstatement by the claimant of
a material fact, or an omission of a material fact necessary to make the claimant’s statements not
materially misleading in connection with a request for indemnification or (ii) a prohibition of
such indemnification under applicable law. The corporation shall be precluded from asserting in
any judicial proceeding commenced pursuant to Section 6.1(c) above that the procedures and
presumptions of this Article 6 are not valid, binding and enforceable and shall stipulate in such
proceeding that the corporation is bound by all the provisions of this Article 6.
(e) With respect to any proceeding for which indemnification is sought hereunder, so
long as there shall not have occurred a Change in Control, the corporation, in its sole discretion,
will be entitled to participate in such proceeding at its own expense and, except as provided
below, to assume the defense of, and to settle, such proceeding. After notice from the corporation
to the claimant of its election so to assume the defense thereof, the corporation will not be
liable to the claimant under this Article 6 for any legal or other Expenses subsequently incurred
by the claimant in connection with the defense thereof other than reasonable costs of investigation
or as otherwise provided below. The claimant shall have the right to employ its counsel in such
proceeding but the fees and Expenses of such counsel incurred after notice from the corporation of
its assumption of the defense thereof shall be at the expense of the claimant unless (i) the
employment of counsel by the claimant has been authorized by the corporation, (ii) the claimant
shall have reasonably concluded that there may be a conflict of interest between the corporation
and the claimant in the conduct of the defense of such proceeding or (iii) the corporation shall
not in fact have employed counsel to assume the defense of such proceeding, in each of which cases
the fees and Expenses of counsel shall be at the expense of the corporation. The corporation shall
not be entitled to assume the defense of any proceeding brought by or on behalf of the corporation
or as to which the claimant shall have made the conclusion provided for in clause (ii) of the
immediately preceding sentence. The claimant shall not compromise or settle any claim or
proceeding, release any claim, or make any admission of fact, law, liability or damages with
respect to any losses for which indemnification is sought hereunder without the prior written
consent of the corporation, which consent shall not be unreasonably withheld (subject to the terms
and conditions of this Article 6, including any determination required by Section 6.1(b) or by
applicable law). The corporation shall not be liable for any amount paid by the claimant in
settlement of any proceeding or any
claim therein, unless the corporation has consented to such settlement or unreasonably
withholds consent to such settlement.
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(f) If the claimant is a party to or involved in a proceeding with any other person(s)
for whom the corporation is required to indemnify or advance Expenses with respect to such
proceeding, the corporation shall not be required to indemnify against or advance Expenses for more
than one law firm to represent collectively the claimant and such other person(s) in respect of the
same matter unless the representation of the claimant and such other person(s) gives rise to an
actual or potential conflict of interest.
6.2 Advance Payment
The right to indemnification under this Article 6 shall include the right to be paid by the
corporation the expenses incurred in defending any such proceeding in advance of its final
disposition, such advances to be paid by the corporation within
twenty (20) business days after the
receipt by the corporation of a statement or statements from the
claimant requesting and reasonably
evidencing such advance or advances from time to time; provided, however, that if the DGCL
requires, the payment of such expenses incurred by a director or officer in his or her capacity as
a director or officer (and not in any other capacity in which service was or is rendered by such
person while a director or officer, including, without limitation, service to an employee benefit
plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the
corporation of an undertaking by or on behalf of such director or officer to repay all amounts so
advanced if it shall ultimately be determined that such director or officer is not entitled to be
indemnified under Section 6.1 above or otherwise.
6.3 Non-Exclusivity and Survival of Rights; Amendments
The right to indemnification and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Article 6 shall not be deemed exclusive of any
other right which any person may have or hereafter acquire under any statute, provision of the
certificate of incorporation of the corporation, bylaws, agreement, vote of stockholders or
Disinterested Directors or otherwise, both as to action in such person’s official capacity and as
to action in another capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent of the corporation and shall inure to the
benefit of the heirs, executors and administrators of such a person. Any repeal or modification of
the provisions of this Article 6 shall not in any way
diminish or adversely affect the rights or
protections of any director, officer, employee or agent of the
corporation hereunder in respect of any occurrence or matter arising prior to anyproceeding (regardless of when such proceeding is
first threatened, commenced or completed) arising out of, or related to, any act or omission
occurring prior to the time of such repeal or modification.
6.4 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, employee benefit plan or other enterprise against any expense, liability or loss
asserted against such person and incurred by such person in any such capacity, or arising out of
such person’s status as such, whether or not the corporation would have the power to indemnify such
person against such liability under the provisions of the DGCL.
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6.5 Severability
If any word, clause, provision or provisions of this Article 6 shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (i) the validity, legality and enforceability
of the remaining provisions of this Article 6 (including, without limitation, each portion of any
section or paragraph of this Article 6 containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby; and (ii) to the fullest extent possible, the provisions of
this Article 6 (including, without limitation, each such portion of any section or paragraph of
this Article 6 containing any such provision held to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
6.6 Definitions
For the purpose of this Article 6:
“Change of Control” shall mean:
(1) the acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the 1934 Act (a “Person”)), directly or indirectly, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of 20% or more
of either (i) the then outstanding shares of common stock of the corporation (the
“Outstanding Corporation Common Stock”) or (ii) the combined voting power of the then
outstanding voting securities of the corporation entitled to vote generally in the election
of directors (the “Outstanding Corporation Voting Securities”); provided, however, that for
purposes of this part (1), the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the corporation or any acquisition from other
stockholders where (A) such acquisition was approved in advance by the Board and (B) such
acquisition would not constitute a Change of Control under part (2) or part (4) of this
definition, (ii) any acquisition by the corporation, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the corporation or any
corporation controlled by the corporation, or (iv) any acquisition by any corporation
pursuant to a transaction that complies with clauses (i), (ii) and (iii) of part (4) of this
definition; or
(2) the acquisition by any Person, directly or indirectly, of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the 1934 Act) of 50% or more of either
(i) the Outstanding Corporation Common Stock or (ii) the Outstanding Corporation Voting
Securities; or
(3) individuals who, as of the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the stockholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board (or such committee thereof
that shall then have the authority to nominate persons for election as directors) shall be
considered as though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with
22
respect to the election or removal of directors or other actual or threatened
solicitation of proxies of consents by or on behalf of a Person other than the Board; or
(4) consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the corporation (a “Business
Combination”), in each case, unless, immediately following such Business Combination, (i)
all or substantially all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation resulting
from such Business Combination (including, without limitation, a corporation that as a
result of such transaction owns the corporation or all or substantially all of the
corporation’s assets either directly or through one or more subsidiaries) in substantially
the same proportions as their ownership, immediately prior to such Business Combination of
the Outstanding Corporation Common Stock and Outstanding Corporation Voting Securities, as
the case may be, (ii) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the corporation or such
corporation resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation except to the extent that such
ownership existed prior to the Business Combination, and (iii) at least a majority of the
members of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business Combination; or
(5) approval by the stockholders of a complete liquidation or dissolution of the
corporation.
“Disinterested Director” shall mean a director of the corporation who is not and was not a
party to the matter in respect of which indemnification is sought by the claimant.
“Independent Counsel” shall mean a law firm, a member of a law firm, or an independent
practitioner, that is experienced in matters of corporation law and
neither presently is, nor in
the past five years has been, retained to represent: (i) the corporation or the claimant in any
matter material to any such party, or (ii) any other party to the proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the
term “Independent Counsel” shall not shall include any person who, under the applicable standards of professional conduct then
prevailing, would not have a conflict of interest in representing either the corporation or the
claimant in an action to determine the claimant’s rights under this Article 6.
6.7 Notices
Any notice, request or other communication required or permitted to be given to the
corporation under this Article 6 shall be in writing and either delivered in person or sent by
telecopy, telex, telegram or other electronic
transmission, overnight mail or courier service, or
certified or registered mail, postage or charges prepaid, return copy requested, to the Secretary
of the corporation and shall be effective only upon receipt by the Secretary.
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ARTICLE 7
Capital Stock
7.1 Certificates for Shares
The
shares of stock of the corporation shall be represented by certificates or, where approved
by the Board and permitted by law, shall be uncertificated.
Certificates
representing shares of stock shall be signed by, or in the name of the corporation by, the Chairman of the Board, the
Chief Executive Officer, the President or a Vice President and by the Chief Financial Officer, the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the corporation.
Certificates or
uncertificated shares may be issued for partly paid
shares and in suchthe case of
certificated shares, upon the face or back of the certificates issued to represent any such partly
paid shares, the total amount of the consideration to be paid therefor, and the amount paid thereon
shall be specified.
If the corporation shall be authorized to issue more than one class of stock or more than one
series of any class, the powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences or rights shall be set forth in full or summarized on the face
or back of the certificate which the corporation shall issue to represent such class or series of
stock, provided 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 which 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,
designations, preferences and relative, participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations or restrictions of such
preferences or rights.
Within a reasonable time after the issuance or transfer of uncertificated stock, the
corporation shall send to the registered owner thereof a written notice containing the information
required by the DGCL or a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences or rights.
7.2 Signatures on Certificates
Any or all of the signatures on a 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 shall have 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.
7.3 Transfer of Stock
Upon surrender to the corporation or the transfer agent of the corporation of a certificate of
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 upon its books. Upon receipt of
proper transfer instructions from the registered owner of uncertificated
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7.4 Registered Stockholders
The corporation 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, and to hold
liable for calls and assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other notice thereof, except
as otherwise provided by the laws of Delaware.
7.5 Lost, Stolen or Destroyed Certificates
The
corporation may direct that a new certificate or certificates or uncertificated shares be
issued to replace any certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed and on such terms and conditions
as the corporation may require. When authorizing the issue of a new certificate or certificates,
the corporation may, in its discretion and as a condition precedent to the issuance thereof,
require the owner of the lost, stolen or destroyed certificate or certificates, or his or her legal
representative, to advertise the same in such manner as it shall require, to indemnify the
corporation in such manner as it may require, and to give the corporation a bond or other adequate
security in such sum as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
ARTICLE 8
General Provisions
8.1 Dividends
Dividends upon the capital stock of the corporation, subject to any restrictions contained in
the DGCL or the provisions of the certificate of incorporation of the corporation, if any, may be
declared by the Board at any regular or special meeting or by unanimous written consent. Dividends
may be paid in cash, in property or in shares of capital stock, subject to the provisions of the
certificate of incorporation of the corporation. The Board may fix any record date for purposes of
determining the stockholders entitled to receive payment of any
dividend as set forth in Section 2.11 above.
8.2 Dividend Reserve
Before payment of any dividend, there may be set aside out of any funds of the corporation
available for dividends such sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was created.
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8.3 Checks
All checks or demands for money and notes of the corporation shall be signed by such officer
or officers or such other person or persons as the Board may from time to time designate.
8.4 Fiscal Year
The fiscal year of the corporation shall be fixed by resolution of the Board.
8.5 Corporate Seal
The Board may, by resolution, adopt a corporate seal. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization and the words “Corporate Seal,
Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced. The seal may be altered from time to time by the Board.
8.6 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.
8.7 Representation of Shares of Other Corporations
Each of the Chief Executive Officer, the President or any Vice President, the Chief Financial
Officer or the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of
the corporation is authorized to vote, represent and exercise on behalf of the corporation all
rights incident to any and all shares of any corporation or corporations standing in the name of
the corporation. The authority herein granted to said officers to vote or represent on behalf of
the corporation any and all shares held by the corporation in any other corporation or corporations
may be exercised either by such officers in person or by any other person authorized so to do by
proxy or power of attorney duly executed by said officers.
ARTICLE 9
Amendments
These bylaws may be altered, amended or repealed, in whole or in part, or new bylaws may be
adopted by the stockholders or by the Board; provided, however, that notice of such alteration,
amendment, repeal or adoption of new bylaws be contained in the notice of such meeting of the
stockholders or the Board, as the case may be. Any such alteration, amendment, repeal or adoption
must be approved by either the vote of the holders of a majority of the stock issued and
outstanding and entitled to vote thereon or by a majority of the entire Board; provided, however,
that until November 12, 2006, any such alteration, amendment, repeal or adoption by the Board must
be approved by the affirmative vote of at least 80% of the
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Exhibit 10.1
Indemnification Agreement
This Agreement, made and entered into this day of , 200 (“Agreement”), by
and among Biogen Idec Inc., a Delaware corporation (the “Company”), and
(“Indemnitee”):
WHEREAS, it is reasonable, prudent and necessary for the Company to obligate itself to
indemnify, and to advance expenses on behalf of, its directors to the fullest extent permitted by
applicable law so that they will serve or continue to serve the Company free from undue concern
that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve as a director of the Company on the condition that
Indemnitee be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
| 1. | Services by Indemnitee. Indemnitee agrees to serve or to continue to serve, as the case may be, as a director of the Company. Indemnitee may at any time and for any reason resign from such position (subject to any contractual obligation under any other agreement or any obligation imposed by operation of law). | |
| 2. | Indemnification — General. The Company shall indemnify and advance Expenses (as hereinafter defined) to Indemnitee to the fullest extent permitted by applicable law in effect on the date hereof and as amended from time to time subject to the terms and conditions of this Agreement. For the avoidance of doubt, the indemnification obligations of the Company under this Agreement shall apply to (i) claims for monetary damages against Indemnitee in respect of an alleged breach of fiduciary duties, to the fullest extent permitted under Section 145 of the Delaware General Corporation Law as in existence on the date hereof and as amended from time to time and (ii) Indemnitee’s participation, by reason of Indemnitee’s Corporate Status, as a witness or other participant in any Proceeding to which Indemnitee is not a party. The indemnification obligations of the Company in this Agreement shall continue after such time as Indemnitee ceases to be a director of the Company, subject to the terms and conditions of this Agreement. | |
| 3. | Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 3 if, by reason of Indemnitee’s Corporate Status (as hereinafter defined), Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company. Pursuant to this Section 3, Indemnitee shall be indemnified with respect to, and held harmless from and against, all Expenses, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, penalties, fines and amounts paid in settlement) reasonably incurred by Indemnitee or on behalf of Indemnitee in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, with respect to any criminal Proceeding, had no reasonable cause to believe Indemnitee’s conduct was unlawful. |
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| 4. | Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 4 if, by reason of Indemnitee’s Corporate Status, Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding brought by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be indemnified with respect to, and held harmless from and against, all Expenses (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses) reasonably incurred by Indemnitee or on behalf of Indemnitee in connection with such Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; provided, however, that indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Company if, and only to the extent that, the Court of Chancery of the State of Delaware, or the court in which such Proceeding shall have been brought or is pending, shall determine that such indemnification may be made. | |
| 5. | Mandatory Indemnification. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to (or a participant in) and is successful, on the merits or otherwise, in defense of any Proceeding, Indemnitee shall be indemnified with respect to, and held harmless from and against, all Expenses reasonably incurred by Indemnitee or on behalf of Indemnitee in connection therewith. If Indemnitee is not wholly successful in defense of such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses reasonably incurred by Indemnitee or on behalf of Indemnitee in connection with each successfully resolved claim, issue or matter. For purposes of this Section 5 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, on substantive or procedural grounds, shall be deemed to be a successful result as to such claim, issue or matter. | |
| 6. | Partial Indemnification. If Indemnitee is entitled under any provision of this agreement to indemnification by the Company for some or a portion of the Expenses, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, penalties, fines and amounts paid in settlement) incurred by Indemnitee or on behalf of Indemnitee in connection with such Proceeding or any claim, issue or matter therein, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for that portion thereof to which Indemnitee is entitled. | |
| 7. | Advancement of Expenses. The Company shall advance all Expenses reasonably incurred by or on behalf of Indemnitee in connection with any Proceeding within twenty (20) business days after the receipt by the Company of a written statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Such advances (i) shall be unsecured and interest free, (ii) shall be made without regard to Indemnitee’s ability to repay the advances, (iii) shall continue until such time (if any) as there is a final judicial determination that Indemnitee is not entitled to indemnification and (iv) shall in all cases be subject to the terms and conditions of this Agreement. In the event that it is ultimately determined that Indemnitee is not entitled to be indemnified for any Expenses advanced to Indemnitee, then the Company shall be entitled to be reimbursed, within one hundred and eighty (180) days of such determination, by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid. |
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| 8. | Procedure for Determination of Entitlement to Indemnification. |
| a. | To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request for indemnification at such time as determined by Indemnitee in Indemnitee’s sole discretion; provided, however, that the failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise except to the extent that any delay in such notification actually and materially prejudices the Company. Upon such written request for indemnification, Indemnitee’s entitlement to indemnification shall be determined by the procedures set forth in Sections 8(b) through 8(e) and Section 9 hereof. | ||
| b. | Promptly upon receipt of such a request for indemnification, the Secretary of the Company shall advise the Board in writing that Indemnitee has requested indemnification. Upon written request by Indemnitee for indemnification, a determination with respect to Indemnitee’s entitlement to indemnification shall, if required by applicable law, be made in the specific case as follows: (i) if requested by Indemnitee, by Independent Counsel, or (ii) if no request is made by Indemnitee for a determination by Independent Counsel, (A) by the Board by a majority vote of the Disinterested Directors, even though less than a quorum, or (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum, or (C) if there are no Disinterested Directors or the Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (D) if a quorum of Disinterested Directors so directs, by the stockholders of the Company. If it is so determined that Indemnitee is entitled to indemnification, the Company shall pay Indemnitee within twenty (20) business days after such determination any then known amounts with respect to which it has been so determined that Indemnitee is entitled to indemnification hereunder and will pay any other amounts thereafter incurred for which Indemnitee is entitled to indemnification within twenty (20) business days of the Company’s receipt of reasonably detailed invoices for such amounts. | ||
| c. | The Company and Indemnitee shall each cooperate with the person, persons or entity making the determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or protected by the work-product doctrine or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including attorneys’ fees and disbursements) reasonably incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company hereby agrees to indemnify and hold Indemnitee harmless therefrom. | ||
| d. | In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) hereof, the Independent Counsel shall be selected as provided in this Section 8(d). If a Change of Control shall not have occurred within two years prior to the date of the commencement of the Proceeding for which indemnification is claimed, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change of Control shall have so occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall |
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| request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 16 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. |
| e. | If, within thirty (30) days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the State of Delaware for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel or for the appointment as Independent Counsel of a person selected by the Court or by such other person as the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 8(b) hereof. The Company shall pay any and all fees and expenses of Independent Counsel reasonably incurred in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 8, regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding pursuant to Section 11(a)(iii) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). |
| 9. | Presumptions and Effect of Certain Proceedings. |
| a. | In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including its board of directors, independent legal counsel or stockholders) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor the fact that the Company (including its board of directors, independent legal counsel or stockholders) has determined that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and, with |
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| respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful. |
| b. | If the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within ninety (90) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement(s) not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law. | ||
| c. | For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company or relevant enterprise, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Company or relevant enterprise in the course of their duties, or on the advice of legal counsel for the Company or relevant enterprise or on information or records given in reports made to the Company or relevant enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or relevant enterprise. The provisions of this Section 9(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. | ||
| d. | The knowledge or actions, or failure to act, of any other director, officer, agent or employee of the Company or relevant enterprises shall not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. |
| 10. | Additional Procedures |
| a. | Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise. | ||
| b. | So long as there shall not have occurred a Change in Control, the Company, in its sole discretion, will be entitled to participate in any Proceeding at its own expense and, except as provided below, to assume the defense of, and to settle, such Proceeding. After notice from the Company to Indemnitee of its election so to assume the defense thereof, the Company will not be liable to Indemnitee under this Agreement for any legal or other Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ its counsel in such Proceeding but the fees and Expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized by the Company, (ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of the defense of such Proceeding or (iii) the Company shall not in fact have employed counsel to assume |
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| the defense of such Proceeding, in each of which cases the fees and Expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which Director shall have made the conclusion provided for in clause (ii) of the immediately preceding sentence. |
| c. | Indemnitee shall not compromise or settle any claim or Proceeding, release any claim, or make any admission of fact, law, liability or damages with respect to any losses for which indemnification is sought hereunder without the prior written consent of the Company, which consent shall not be unreasonably withheld (subject to the terms and conditions of this Agreement, including any determination required by Section 8 of this Agreement or by applicable law). The Company shall not be liable for any amount paid by Indemnitee in settlement of any Proceeding or any claim therein, unless the Company has consented to such settlement or unreasonably withholds consent to such settlement. |
| 11. | Remedies of Indemnitee. |
| a. | In the event that (i) a determination is made pursuant to Section 8 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this Agreement, or (iii) payment of indemnification is not made within twenty (20) business days after a determination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication by the Court of Chancery of the State of Delaware, or any other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses. | ||
| b. | In the event that a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 11 shall be conducted in all respects as a de novo trial on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change of Control shall have occurred, in any judicial proceeding commenced pursuant to this Section 11, the Company shall have the burden of proving that Indemnitee is not entitled to indemnification. | ||
| c. | If a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 11, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading in connection with the request for indemnification or (ii) a prohibition of such indemnification under applicable law. | ||
| d. | In the event that Indemnitee, pursuant to this Section 11, seeks a judicial adjudication of Indemnitee’s rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company for and held harmless from and against, any and all Expenses reasonably incurred by him in such judicial adjudication to the extent that Indemnitee is determined in said judicial adjudication to be entitled to indemnification or advancement of Expenses under this Agreement. Therefore, if it shall be determined in said judicial adjudication that Indemnitee is entitled to receive part but not all of the indemnification or advancement of Expenses |
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| sought, the Expenses reasonably incurred by Indemnitee in connection with such judicial adjudication shall be appropriately prorated. |
| 12. | Non-Exclusivity; Survival of Rights; Insurance; Subrogation. |
| a. | The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Company’s Certificate of Incorporation, the Company’s By-Laws, any agreement, vote of stockholders or resolution of directors of the Company, or otherwise. Indemnitee’s rights under this Agreement are present contractual rights that shall fully vest upon Indemnitee’s first service as a Covered Person. To the extent that a change in the General Corporation Law of the State of Delaware, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Company’s Certificate of Incorporation or By-Laws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy. | ||
| b. | In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, and Indemnitee hereby agrees, as a condition to obtaining any advancement or indemnification from the Company, to assign all of Indemnitee’s rights to obtain from the any other person or entity any such amounts to the extent that they have been paid to or for the benefit of Indemnitee as advancement or indemnification under this Agreement and are adequate to indemnify Indemnitee with respect to the costs, Expenses or other items to the full extent that Indemnitee is entitled to indemnification or other payment hereunder; and Indemnitee shall (upon request by the Company) execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit or enforce such rights. | ||
| c. | The Company shall not be liable under this Agreement to pay or advance to Indemnitee any amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise. | ||
| d. | The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee in respect of or relating to Indemnitee’s service at the request of the Company as a director, officer, employee, fiduciary, representative, partner or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received as payment of indemnification or advancement of Expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. |
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| 13. | Employment Rights; Successors; Third Party Beneficiaries. |
| a. | This Agreement shall not be deemed an employment contract between the Company and Indemnitee. Indemnitee specifically acknowledges that with respect to Indemnitee’s service as a director, Indemnitee may be removed as a director at any time in any manner permitted by the Company’s Certificate of Incorporation and By-laws and the General Corporation Law of the State of Delaware. The foregoing notwithstanding, this Agreement shall continue in force as provided above after Indemnitee has ceased to serve as a director of the Company. | ||
| b. | The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would have been required to perform in the absence of any succession. This Agreement shall be binding upon the Company and its successors and assigns and shall inure to the benefit of Indemnitee and Indemnitee’s heirs, executors and administrators. |
| 14. | Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby. | |
| 15. | Exceptions to Right of Indemnification or Advancement of Expenses. |
| a. | Except as provided in Section 11(d) of this Agreement, Indemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding brought by Indemnitee, or any claim therein, unless the bringing of such Proceeding or making of such claim shall have been approved by the Board of Directors of the Company. | ||
| b. | If Indemnitee is a participant in a Proceeding with any other person(s) for whom the Company is required to indemnify or advance Expenses with respect to such Proceeding, the Company shall not be required to indemnify against or advance Expenses for more than one law firm to represent collectively Indemnitee and such other person(s) in respect of the same matter unless the representation of Indemnitee and such other person(s) gives rise to an actual or potential conflict of interest. |
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| 16. | Definitions. For purposes of this Agreement: |
| a. | “Board of Directors” refers to the board of directors of the Company. | ||
| b. | “Change in Control” means: |
| i. | The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder (collectively, the “1934 Act”) (a “Person”)), directly or indirectly, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of 20% or more of either (i) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this part (1), the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Company or any acquisition from other stockholders where (A) such acquisition was approved in advance by the Board of Directors and (B) such acquisition would not constitute a Change of Control under part (2) or part (4) of this definition, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (iv) any acquisition by any corporation pursuant to a transaction that complies with clauses (i), (ii) and (iii) of part (4) of this definition; or | ||
| ii. | The acquisition by any Person, directly or indirectly, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of 50% or more of either (i) the Outstanding Company Common Stock or (ii) the Outstanding Company Voting Securities; or | ||
| iii. | Individuals who, as of the date hereof, constitute the Board of Directors (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (or such committee thereof that shall then have the authority to nominate persons for election as directors) shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies of consents by or on behalf of a Person other than the Board of Directors; or | ||
| iv. | Consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless, immediately following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, |
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| respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination, and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board of Directors, providing for such Business Combination; or |
| v. | Approval by the stockholders of a complete liquidation or dissolution of the Company. |
| c. | “Corporate Status” describes the status of a person in his or her capacity as a Covered Person, provided, however, that “Corporate Status” shall not include any act or omission by such person during any time when such person was not a “Covered Person”. | ||
| d. | “Covered Person” means a director of the Company (including, without limitation, one who serves at the request of the Company as a director, officer, employee, fiduciary, representative, partner or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise). | ||
| e. | “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee. | ||
| f. | “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees and costs of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding, including, but not limited to, the premium for appeal bonds, attachment bonds or similar bonds. | ||
| g. | “Independent Counsel” means a law firm, a member of a law firm or an independent practitioner that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to any such party, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional |
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| conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. |
| h. | “Proceeding” includes any actual, threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened, pending or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative in nature, in which Indemnitee was, is, may be or will be involved as a party, witness or otherwise, by reason of Indemnitee’s Corporate Status, or by reason of any action taken by him or of any inaction on Indemnitee’s part while serving as a director of the Company, in each case whether or not Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification or advancement of Expenses can be provided under this Agreement; except one initiated by an Indemnitee pursuant to Section 11(d) of this Agreement to enforce Indemnitee’s rights under this Agreement. |
| 17. | Construction. Whenever required by the context, as used in this Agreement the singular number shall include the plural, the plural shall include the singular, and all words herein in any gender shall be deemed to include (as appropriate) the masculine, feminine and neuter genders. | |
| 18. | Reliance; Integration. |
| a. | The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve or to continue to serve, as the case may be, as a director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director of the Company. | ||
| b. | This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof. |
| 19. | Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. | |
| 20. | Notice Mechanics. All notices, requests, demands or other communications hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed or (ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed: |
| a. | If to Indemnitee to: |
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| b. | If to the Company, to: |
Biogen Idec Inc.
14 Cambridge Center
Cambridge, MA 02142
Attn: Secretary
14 Cambridge Center
Cambridge, MA 02142
Attn: Secretary
| 21. | Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever with respect to any Proceeding or any claim, issue or matter therein and the Company is jointly liable with Indemnitee for such Proceeding, claim, issue or matter, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement or for reasonably incurred Expenses in connection with such claim, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding, claim, issue or matter in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) or transaction(s) giving cause to such Proceeding, claim, issue or matter and (ii) the relative fault of the Company (and their other directors, officers, employees and agents) and Indemnitee in connection with such event(s) or transaction(s). | |
| 22. | Governing Law; Submission to Jurisdiction; Appointment of Agent for Service of Process. This Agreement and the legal relations among the parties shall, to the fullest extent permitted by law, be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware (the “Delaware Court”), and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court, and (iv) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or otherwise inconvenient forum. | |
| 23. | Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. | |
| 24. | Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. |
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first
above written.
| BIOGEN IDEC INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE: |
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| Name: | ||||
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