CERTIFICATE OF INCORPORATION
OF
DANAHER CORPORATION
FIRST: The name of the Corporation is Danaher
Corporation.
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 4305 Lancaster
Pike, in the city of Wilmington, County of New Castle.
The name of its registered agent at that address is
Corporation Service Company.
THIRD: The purpose of the Corporation is to engage
in any lawful act or activity for which a corporation may be
organized under the General Corporation Law of Delaware
as set forth in Title 8 of the Delaware Code (the "GCL").
FOURTH: I. The total number of shares of stock
which the Corporation shall have authority to issue is
30,000,000 shares of which 25,000,000 shares, $.01 par
value per share, shall be of a class designated "Common
Stock" and of which 5,000,000 shares, without par value,
shall be designated "Preferred Stock."
II. The Board of Directors of the Corporation is
authorized, subject to limitations prescribed by law and the
provisions of this Article FOURTH, to provide for the
issuance from time to time in one or more series of any
number of shares of Preferred Stock, and, by filing a
certificate pursuant to the GCL, to establish the number of
shares to be included in each such series, and to fix the
designation, relative rights, preferences, qualifications and
limitations of the shares of each such series. The authority
of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the
following:
A. The number of shares constituting that series
and the distinctive designation of that series;
B. The dividend rate on the shares of that series,
whether dividends shall be cumulative, and, if so, from
which date or dates, and whether they shall be payable in
preference to, or in another relation to, the dividends
payable on any other class or classes or series of stock;
C. Whether that series shall have voting rights,
in addition to the voting rights provided by law, and, if so,
the terms of such voting rights;
D. Whether that series shall have conversion or
exchange privileges, and, if so, the terms and conditions of
such conversion or exchange, including provision for
adjustment of the conversion or exchange rate in such
events as the Board of Directors shall determine;
E. Whether or not the shares of that series shall
be redeemable, and, if so, the terms and conditions or such
redemption, including the manner of selecting shares for
redemption if less than all shares are to be redeemed, the
date or dates upon or after which they shall be redeemable,
and the amount per share payable in case of redemption
which amount may vary under different conditions and at
different redemption dates;
F. Whether that series shall be entitled to the
benefit of a sinking fund to be applied to the purchase or
redemption of shares of that series, and, if so, the terms and
amounts of such sinking fund;
G. The right of the shares of that series to the
benefit of conditions and restrictions upon the creation of
indebtedness of the Corporation or any subsidiary, upon the
issue of any additional stock (including additional shares of
such series or of any other series) and upon the payment of
dividends or the making of other distributions on, and the
purchase, redemption or other acquisition by the
Corporation or any subsidiary of any outstanding stock of
the Corporation;
H. The right of the shares of that series in the
event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation and whether
such rights shall be in preference to, or in another relation
to, the comparable rights of any other class or classes or
series of stock; and
I. Any other relative, participating, optional or
other special rights, qualifications, limitations or
restrictions of that series.
III. Shares of any series of Preferred Stock which
have been redeemed (whether through the operation of a
sinking fund or otherwise) or which, if convertible or
exchangeable, have been converted into or exchanged for
shares of stock of any other class or classes shall have the
status of authorized and unissued shares of Preferred Stock
of the same series and may be reissued as a part of the
series of which they were originally a part or may be
reclassified and reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the
Board of Directors or as part of any other series of
Preferred Stock, all subject to the conditions and the
restrictions on issuance set forth in the resolution or
resolutions adopted by the Board of Directors providing for
the issue of any series of Preferred Stock.
IV. Subject to the provisions of any applicable law,
or except as otherwise provided by the resolution or
resolutions providing for the issue of any series of Preferred
Stock, the holders of outstanding shares of Common Stock
shall exclusively possess voting power for the election of
directors and for all other purposes, each holder of record
of shares of Common Stock being entitled to one vote for
each share of Common Stock standing in his name on the
books of the Corporation.
V. Except as otherwise provided by the resolution
or resolutions providing for the issue of any series of
Preferred Stock, after payment shall have been made to the
holders of Preferred Stock of the full amount of dividends
to which they shall be entitled pursuant to the resolution or
resolutions providing for the issue of any series of Preferred
Stock the holders of Common Stock shall be entitled, to the
exclusion of the holders of Preferred Stock of any and all
series, to receive such dividends as from time to time may
be declared by the Board of Directors.
VI. Except as otherwise provided by the resolution
or resolutions providing for the issue of any series of
Preferred Stock in the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or
involuntary, after payment shall have been made to the
holders of Preferred Stock of the full amount to which they
shall be entitled pursuant to the resolution or resolutions
providing for the issue of any series of Preferred Stock, the
holders of Common Stock shall be entitled, to the exclusion
of the holders of Preferred Stock of any and all series, to
share, ratably according to the number of shares of
Common Stock held by them, in all remaining assets of the
Corporation available for distribution to its stockholders.
VII. The number of authorized shares of any class
may be increased or decreased by the affirmative vote of
the holders of a majority of the stock of the Corporation
entitled to vote.
FIFTH: The name and mailing address for the Sole
Incorporator is as follows:
Name Mailing Address
Sheldon S. Adler Skadden, Arps, Slate, Meagher &
Flom
919 Third Avenue
New York, New York 10022
SIXTH: I. The business and affairs of the
Corporation shall be managed by or under the direction of a
Board of Directors consisting of not less than three
directors, the exact number of directors to be determined
from time to time by resolution adopted by the affirmative
vote of a majority of the entire Board of Directors. The
directors shall be divided into three classes, designated
Class I, Class II and Class III. Each class shall consist, as
nearly as may be possible, of one-third of the total number
of directors constituting the entire Board of Directors.
Class I directors initially shall be elected for a one-year
term to expire at the 1987 annual meeting of stockholders,
Class II directors for a two-year term to expire at 1988
annual meeting of stockholders and Class III directors for a
three-year term to expire at the 1989 meeting of
stockholders. At each succeeding annual meeting of
stockholders, beginning in 1987, successors to the class of
directors whose term expires at that annual meeting shall be
elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors
in each class as nearly equal as possible, and any additional
director of any class elected to fill a vacancy resulting from
an increase in such class shall hold office for a term that
shall coincide with the remaining term of that class, but in
no case will a decrease in the number of directors shorten
the term of any incumbent director. A director shall hold
office until the annual meeting for the year in which his
term expires and until his successor shall be elected and
shall qualify, subject however, to prior death, resignation,
retirement, disqualification or removal from office. Any
vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a
majority of the directors then in office, although less than a
quorum, or by a sole remaining director. Any director
elected to fill a vacancy not resulting from an increase in
the number of directors shall have the same remaining term
as that of his predecessor.
Notwithstanding the foregoing, whenever the holders
of any one or more classes or series of Preferred Stock
issued by the Corporation shall have the right, voting
separately by class or series, to elect directors at an annual
or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such
directorships shall be governed by the terms of this
Certificate of Incorporation applicable thereto, and such
directors so elected shall not be divided into classes
pursuant to this Article SIXTH unless expressly provided
by such terms.
II. Except to the extent prohibited by law, the Board
of Directors shall have the right (which, to the extent
exercised, shall be exclusive) to establish the rights,
powers, duties, rules and procedures that from time to time
shall govern the Board of Directors and each of its
members, including without limitation the vote required for
any action by the Board of Directors, and that from time to
time shall affect the directors power to manage the business
and affairs of the Corporation; and no By- laws shall be
adopted by stockholders which shall impair or impede the
implementation of the foregoing.
SEVENTH: The directors shall have concurrent
power with the stockholders to make, alter, amend, change,
add to or repeal the By-Laws of the Corporation. In
addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are
hereby empowered to exercise all such powers and do all
such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the
statutes of Delaware, this Certificate of Incorporation, and
any By-Laws adopted by the stockholders; provided,
however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been
adopted.
EIGHTH: Meetings of stockholders may be held
within or without the State of Delaware, as the By-Laws
may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside
the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors in
the By-Laws of the Corporation.
NINTH: Whenever a compromise or arrangement
is proposed between the Corporation and its creditors or
any class of them and/or between the Corporation and its
stockholders or any class of them, any court of the
equitable jurisdiction within the State of Delaware may, on
the application in a summary way of the Corporation or of
any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation
under the provisions of Section 291 of Title 8 of the GCL
or on the application of trustees in dissolution or of any
receiver or receivers appointed for the Corporation under
the provisions of Section 279 of Title 8 of the GCL, order a
meeting of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree
to any compromise or arrangement and to any
reorganization of the Corporation as a consequence of such
compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned
by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or
on all the stockholders or class of stockholders, of the
Corporation, as the case may be, and also on the
Corporation.
TENTH: The Corporation shall indemnify to the
full extent authorized or permitted by law any person made,
or threatened to be made, a party to any action or
proceeding (whether civil or criminal or otherwise) by
reason of the fact that he, his testator or intestate, is or was
a director or officer of the Corporation or by reason of the
fact that such director or officer, at the request of the
Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or
other enterprise, in any capacity. Nothing contained herein
shall affect any rights to indemnification to which
employees other than directors and officers may be entitled
by law. No director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary
damages for any breach of fiduciary duty by such a director
as a director. Notwithstanding the foregoing sentence, a
director shall be liable to the extent provided by applicable
law (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) pursuant to Section 174
of the GCL, or (iv) for any transaction from which such
director derived an improper personal benefit. No
amendment to or repeal of this Article TENTH shall apply
to or have any effect on the liability or alleged liability of
any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such
amendment.
ELEVENTH: The Corporation reserves the right to
amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this
reservation.
I, THE UNDERSIGNED, being the incorporator
hereinbefore named, for the purpose of forming a
corporation pursuant to the GCL, do make this Certificate,
hereby declaring and certifying that this is my act and deed
and the facts herein stated are true, and accordingly have
hereunto set my hand this third day of October, 1986.
/s/ Sheldon S. Adler
Sheldon S. Adler
Sole Incorporator
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
DANAHER CORPORATION
_________________________________
Pursuant to Section 242 of the General
Corporation Laws of the State of Delaware
_________________________________
Danaher Corporation, a corporation organized and
existing under the laws of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: That Paragraph I. of Article FOURTH of the
Certificate of Incorporation of the Corporation be amended
and read in its entirety as follows:
FOURTH: I. The total number of shares of stock
which the Corporation shall have authority to issue is
315,000,000 shares of which 300,000,000 shares, $.01 par
value per share, shall be of a class designated "Common
Stock" and of which 15,000,000 shares, without par value,
shall be designated "Preferred Stock".
SECOND: That the foregoing amendment has been
duly adopted in accordance with the provisions of Section
242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, DANAHER
CORPORATION has caused this Certificate of
Amendment to the Certificate of Incorporation of
DANAHER CORPORATION to be executed on its behalf
by its President or Vice President, and attested to by its
Secretary or Assistant Secretary this 5 day of May, 1998.
DANAHER CORPORATION
By: /s/ C.S. Brannan
Name: C. Scott Brannan
Title: Vice President
ATTEST:
By: /s/ Patrick W. Allender
Name: Patrick W. Allender
Title: Secretary
BY- LAWS
OF
DANAHER CORPORATION
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office
of the Corporation shall be in the City of Dover, County of
Kent, State of Delaware.
Section 2. Other Offices. The Corporation may
also have offices at such other places both within and
without the State of Delaware as the Board of Directors
may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the
stockholders for the election of directors or for any other
purpose shall be held at such time and place, either within
or without the State of Delaware as shall be designated
from time to time by the Board of Directors and stated in
the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. Annual Meetings. The Annual
Meetings of Stockholders shall be held on such date and at
such time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting,
at which meetings the stockholders shall elect by a plurality
vote a Board of Directors, and transact such other business
as may properly be brought before the meeting. Written
notice of the Annual Meeting stating the place, date and
hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise
prescribed by law or by the Certificate of Incorporation,
Special Meetings of Stockholders, for any purpose or
purposes, may be called by either (i) the Chairman, if there
be one, or (ii) the President, [(iii) any Vice President, if
there be one, (iv) the Secretary or (v) any Assistant
Secretary, if there be one,] and shall be called by any such
officer at the request in writing of a majority of the Board
of Directors [or at the request in writing of stockholders
owning a majority of the capital stock of the Corporation
issued and outstanding and entitled to vote]. Such request
shall state the purpose or purposes of the proposed meeting.
Written notice of a Special Meeting stating the place, date
and hour of the meeting and the purpose or purposes for
which the meeting is called shall be given not less than ten
nor more than sixty days before the date of the meeting to
each stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise provided
by law or by the Certificate of Incorporation, the holders of
a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however,
such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting,
until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might
have been transacted at the meeting as originally noticed.
If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by
law, the Certificate of Incorporation or these Bylaws, any
question brought before any meeting of stockholders shall
be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Each
stockholder represented at a meeting of stockholders shall
be entitled to cast one vote for each share of the capital
stock entitled to vote thereat held by such stockholder.
Such votes may be cast in person or by proxy but no proxy
shall be voted on or after three years from its date, unless
such proxy provides for a longer period. The Board of
Directors, in its discre- tion, or the officer of the
Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting
shall be cast by written ballot.
Section 6. Consent of Stockholders in Lieu of
Meeting. Unless otherwise provided in the Certificate of
Incorporation, any action required or permitted to be taken
at any Annual or Special Meeting of Stockholders of the
Corporation, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting
forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Section 7. List of Stockholders Entitled to Vote.
The officer of the Corporation who has charge of the stock
ledger of the Corporation shall prepare and make, at least
ten 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, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. 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 of the Corporation who is
present.
Section 8. Stock Ledger. The stock ledger of the
Corporation shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list
required by Section 7 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any
meeting of stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The
Board of Directors shall consist of not less than one nor
more than fifteen members, the exact number of which
shall initially be fixed by the Incorporator and thereafter
from time to time by the Board of Directors. Except as
provided in Section 2 of this Article, directors shall be
elected by a plurality of the votes cast at Annual Meetings
of Stockholders, and each director so elected shall hold
office until the next Annual Meeting and until his successor
is duly elected and qualified, or until his earlier resignation
or removal. Any director may resign at any time upon
notice to the Corporation. Directors need not be
stockholders.
Section 2. Vacancies. Vacancies and newly
created directorships resulting from any increase in the
authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or
by a sole remaining director, and the directors so chosen
shall hold office until the next annual election and until
their successors are duly elected and qualified, or until their
earlier resignation or removal.
Section 3. Duties and Powers. The business of the
Corporation shall be managed by or under the direction of
the Board of Directors 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 or
by these By-Laws directed or required to be exercised or
done by the stockholders.
Section 4. Meetings. The Board of Directors of
the Corporation may hold meetings, both regular and
special, either within or without the State of Delaware.
Regular meetings of the Board of Directors may be held
without notice at such time and at such place as may from
time to time be determined by the Board of Directors.
Special meetings of the Board of Directors may be called
by the Chairman, if there be one, the President, or any [*]
director[s]. Notice thereof stating the place, date and hour
of the meeting shall be given to each director either by mail
not less than forty-eight (48) hours before the date of the
meeting, by telephone or telegram on twenty-four (24)
hours' notice, or on such shorter notice as the person or
persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise
specifically provided by law, the Certificate of
Incorporation or these By-Laws, at all meetings of the
Board of Directors, a majority of the entire Board of
Directors 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 of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, 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.
Section 6. Actions of Board. Unless otherwise
provided by the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all the members
of the Board of Directors or committee, as the case may be,
consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of
Directors or committee.
Section 7. Meetings of Conference Telephone.
Unless otherwise provided by the Certificate of
Incorporation or these By-Laws, members of the Board of
Directors of the Corporation, or any committee designated
by the Board of Directors, may participate in a meeting of
the Board of Directors or such committee by means of a
conference telephone or similar communications equipment
by means of which all persons participating in the meeting
can hear each other, and participation in a meeting pursuant
to this Section 7 shall constitute presence in person at such
meeting.
Section 8. Committees. The Board of Directors
may, by resolution passed by a majority of the entire Board
of Directors, designate one or more committees, each
committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who
may replace any absent or disqualified member at any
meeting of any such committee,. In the absence or
disqualification of a member of a committee, and in the
absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified
member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he
or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the
meeting in the place of any absent or disqualified member.
Any committee, to the extent allowed by law and provided
in the resolution establishing such committee, shall have
and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs
of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required.
Section 9. Compensation. The directors may be
paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a
stated salary as director. 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 meetings.
Section 10. Interested Directors. No contract or
transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any
other corporation, partnership, association, or other
organization in which one or more of its directors or
officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose if (i)
the material facts as to his or their relationship or interest
and as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee, and the
Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the
material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract
or transaction is specifically approved in good faith by vote
of the stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or
interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract
or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the
Corporation shall be chosen by the Board of Directors and
shall be a President, a Secretary and a Treasurer. The
Board of Directors, in its discretion, may also choose a
Chairman of the Board of Directors (who must be a
director) and one or more Vice-Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any
number of offices may be held by the same person, unless
otherwise prohibited by law, the Certificate of
Incorporation or these By-Laws. The officers of the
Corporation need not be stockholders of the Corporation
nor, except in the case of the Chairman of the Board of
Directors, need such officers be directors of the
Corporation.
Section 2. Election. The Board of Directors at its
first meeting held after each Annual Meeting of
Stockholders shall elect the officers of the Corporation who
shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined
from time to time by the Board of Directors; and all officers
of the Corporation shall hold office until their successors
are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors
may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring
in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the
Corporation. Powers of attorney, proxies, waivers of notice
of meeting, consents and other instruments relating to
securities owned by the Corporation may be executed in the
name of and on behalf of the Corporation by the President
or any Vice-President and any such officer may, in the
name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in
person or by proxy at any meeting of security holders of
any corporation in which the Corporation may own
securities and at any such meeting shall possess and may
exercise any and all rights and power incident to the
ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and
possessed if present. The Board of Directors may, by
resolution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board of Directors.
The Chairman of the Board of Directors, if there be one,
shall preside at all meetings of the stockholders and of the
Board of Directors. He shall be the Chief Executive
Officer of the Corporation, and except where by law the
signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the
President to sign all contracts, certificates and other
instruments of the Corporation which may be authorized by
the Board of Directors. During the absence or disability of
the President, the Chairman of the Board of Directors shall
exercise all the powers and discharge all the duties of the
President. The Chairman of the Board of Directors shall
also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by
these By-Laws or by the Board of Directors.
Section 5. President. The President shall, subject to
the control of the Board of Directors and, if there be one,
the Chairman of the Board of Directors, have general
supervision of the business of the Corporation and shall see
that all orders and resolutions of the Board of Directors are
carried into effect. He shall execute all bonds, mortgages,
contracts and other instruments of the Corporation
requiring a seal, under the seal of the Corporation, except
where required or permitted by law to be otherwise signed
and executed and except that the other officers of the
Corporation may sign and execute documents when so
authorized by these By-Laws, the Board of Directors or the
President. In the absence or disability of the Chairman of
the Board of Directors, or if there be none, the President
shall preside at all meetings of the stockholders and the
Board of Directors. If there be no Chairman of the Board
of Directors, the President shall be the Chief Executive
Officer of the Corporation. The President shall also
perform such other duties and may exercise such other
powers as from time to time may be assigned to him by
these By-Laws or by the Board of Directors.
Section 6. Vice-Presidents. At the request of the
President or in his absence or in the event of his inability or
refusal to act (and if there be no Chairman of the Board of
Directors), the Vice-President or the Vice-Presidents if
there is more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. Each
Vice-President shall perform such other duties and have
such other powers as the Board of Directors from time to
time may prescribe. If there be no Chairman of the Board
of Directors and no Vice President, the Board of Directors
shall designate the officer of the Corporation who, in the
absence of the President or in the event of the inability or
refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of
stockholders and record all the proceedings thereat in a
book or books to be kept for that purpose; the Secretary
shall also perform like duties for the standing committees
when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such
other duties as may be prescribed by the Board of Directors
or President, under whose supervision he shall be. If the
Secretary shall be unable or shall refuse to cause to be
given notice of all meetings of the stockholders and special
meetings of the Board of Directors, and if there be no
Assistant Secretary, then either the Board of Directors or
the President may choose another officer to cause such
notice to be given. The Secretary shall have custody of the
seal of the Corporation and the Secretary or any Assistant
Secre- tary, if there be one, shall have authority to affix the
same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to
affix the seal of the Corporation and to attest the affixing by
his signature. The Secretary shall see that all books,
reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept
or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the
custody of the corporate funds and securities and shall keep
full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all
moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall
disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the
Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all his
transactions as Treasurer and of the financial condition of
the Corporation. If required by the Board of Directors, the
Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or
under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be
otherwise provided in these By-Laws, Assistant Secretaries,
if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by
the Board of Directors, the President, any Vice-President, if
there be one, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act,
shall perform the duties of the Secretary, and when so
acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant
Treasurers, if there be any, shall perform such duties and
have such powers as from time to time may be assigned to
them by the Board of Directors, the President, any
Vice-President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of his disability or
refusal to act, shall perform the duties of the Treasurer, and
when so acting, shall have all the powers of and be subject
to all the restrictions upon the Treasurer. If required by the
Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for
the restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as
the Board of Directors may choose shall perform such
duties and have such powers as from time to time may be
assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of
stock in the Corporation shall be entitled to have a
certificate signed, in the name of the Corporation (i) by the
Chairman of the Board of Directors, the President or a
Vice- President and (ii) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him
in the Corporation.
Section 2. Signatures. Where a certificate is
countersigned by (i) a transfer agent other than the
Corporation or its employee, or (ii) a registrar other than
the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate 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 were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of
Directors may direct a new certificate to be issued in place
of any certificate 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.
When authorizing such issue of a new certificate, the Board
of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the
Board-of Directors shall require and/or to give the
Corporation a bond 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.
Section 4. Transfers. Stock of the Corporation
shall be transferable in the manner prescribed by law and in
these By-Laws. Transfers of stock shall be made on the
books of the Corporation only by the person named in the
certificate or by his attorney lawfully constituted in writing
and upon the surrender of the certificate therefor, which
shall be cancelled before a new certificate shall be issued.
Section 5. Record Date. In order that the
Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or
for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall
not be more than sixty days nor less than ten days before
the date of such meeting, nor more than sixty days prior to
any other action. 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 of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. 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 law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is
required by law, the Certificate of Incorporation or these
By-Laws, to be given to any director, member of a
committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee or
stockholder, at his 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. Written
notice may also be given personally or by telegram, telex or
cable.
Section 2. Waivers of Notice. Whenever any
notice is required by law, the Certificate of Incorporation or
these By-Laws, to be given to any director, member of a
committee or stockholder, 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.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital
stock of the Corporation, subject to the provisions of the
Certificate of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, and
may be paid in cash, in property, or in shares of the capital
stock. 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 Board of Directors from
time to time, in its absolute discretion, deems 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 any proper purpose, and the Board
of Directors may modify or abolish any such reserve.
Section 2. Disbursements. 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 of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the
Corporation shall be fixed by resolution of the Board of
Directors.
Section 4. 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 reproduced
or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or
Proceedings other Than Those by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of
the fact that he 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 corpo- ration, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. 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 person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or
Proceedings by or in the Right of the Corporation. Subject
to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless
and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 3. Authorization of Indemnification. Any
indemnification under this Article VIII (unless ordered by a
court) shall be made by the Corporation only as authorized
in the specific case upon a determination that
indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the
applicable standard of conduct set forth in Sec- tion 1 or
Section 2 of this Article VIII, as the case may be. Such
determination shall be made (i) by the Board of Directors
by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director,
officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of
any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith,
without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of
any determination under Section 3 of this Article VIII, a
person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable
cause to believe his conduct was unlawful, if his action is
based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by
the officers of the Corporation or another enterprise in the
course of their duties, or on the advice of legal counsel for
the Corporation or another enterprise or on information or
records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or
by an appraiser or other expert selected with reasonable
care by the Corporation or another enterprise. The term
"another enterprise" as used in this Section 4 shall mean
any other corporation or any partnership, joint venture, trust
or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 shall
not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Sections
1 or 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court.
Notwithstanding any contrary determination in the specific
case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination
thereunder, any director, officer, employee or agent may
apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII.
The basis of such indemnification by a court shall be a
determination by such court that indemnification of the
director, officer, employee [or agent] is proper in the
circumstances because he has met the applicable standards
of conduct set forth in Sections 1 or 2 of this Article VIII,
as the case may be. Notice of any application for
indemnification pursuant to this Section 5 shall be given to
the Corporation promptly upon the filing of such
application.
Section 6. Expenses Payable in Advance.
Expenses incurred in defending or investigating a
threatened or pending action, suit or proceeding may be
paid by the Corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer,
employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article
VIII.
Section 7. Non-exclusivity of Indemnification and
Advancement of Expenses. The indemnification and
advancement of expenses provided by or granted pursuant
to this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or
advancement of expenses may be entitled under any
By-Law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding
such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2
of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall
not be deemed to preclude the indemnification of any
person who is not specified in Sections 1 or 2 of this Article
VIII but whom the Corporation has the power or obligation
to indemnify under the provisions of the General
Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may
purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee [or agent] of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee [or agent] of
another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would
have the power or the obligation to indemnify him against
such liability under the provisions of this Article VIII.
Section 9. Meaning of "Corporation" for Purposes
of Article VIII. For purposes of this Article VIII,
references to "the Corporation" shall include, in addition to
the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had
continued, would have had power and authority to
indemnify its directors, officers, and employees [or agents],
so that any person who is or was a director, officer,
employee [or agent] of such constituent corporation, or is
or was serving at the request of such constituent
corporation as a director, officer, employee [or agent] of
another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the
provisions of this Article VIII with respect to the resulting
or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had
continued.
Section 10. Survival of Indemnification and
Advancement of Expenses. The indemnification and
advancement of expenses provided by, or granted pursuant
to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE IX
AMENDMENTS
Section 1. These By-Laws may be altered,
amended or repealed, in whole or in part, or new By-Laws
may be adopted by the stockholders or by the Board of
Directors, provided, however, that notice of such alteration,
amendment, repeal or adoption of new By-Laws be
contained in the notice of such meeting of stockholders or
Board of Directors as the case may be. All such
amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote
thereon or by a majority of the entire Board of Directors
then in office.
Section 2. Entire Board. As used in this Article IX
and in these By-Laws generally, the term "entire Board of
Directors" means the total number of directors which the
Corporation would have if there were no vacancies.