Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
of
KERYX BIOPHARMACEUTICALS, INC.
a Delaware Corporation
TABLE OF CONTENTS
Page
ARTICLE I OFFICES..................................................1
Section 1.01 Registered Office........................................1
Section 1.02 Principal Office.........................................1
Section 1.03 Other Offices............................................1
ARTICLE II MEETINGS OF STOCKHOLDERS.................................1
Section 2.01 Annual Meetings..........................................1
Section 2.02 Special Meetings.........................................1
Section 2.03 Place of Meetings........................................2
Section 2.04 Notice of Meetings.......................................2
Section 2.05 Quorum...................................................3
Section 2.06 Voting...................................................3
Section 2.07 List of Stockholders.....................................4
Section 2.08 Stock Ledger.............................................5
Section 2.09 Nomination of Directors..................................5
Section 2.10 Notice of Business at Annual Meetings....................6
Section 2.11 Conduct of Meetings......................................8
Section 2.12 Inspector of Election....................................8
Section 2.13 Stockholder Action Without Meetings......................9
Section 2.14 Record Date..............................................9
ARTICLE III BOARD OF DIRECTORS.......................................9
Section 3.01 General Powers...........................................9
Section 3.02 Number and Term.........................................10
Section 3.03 Election of Directors...................................10
Section 3.04 Resignation and Removal.................................10
Section 3.05 Vacancies...............................................10
Section 3.06 Place of Meeting; Telephone Conference Meeting..........10
Section 3.07 First Meeting...........................................11
Section 3.08 Regular Meetings........................................11
Section 3.09 Special Meetings........................................11
Section 3.10 Quorum and Action.......................................11
Section 3.11 Action by Consent.......................................11
Section 3.12 Compensation............................................12
Section 3.13 Committees..............................................12
Section 3.14 Officers of the Board...................................12
Section 3.15 Interested Directors....................................12
ARTICLE IV OFFICERS................................................13
Section 4.01 Officers................................................13
Section 4.02 Election and Term.......................................13
Section 4.03 Subordinate Officers....................................13
Section 4.04 Removal and Resignation.................................13
Section 4.05 Vacancies...............................................13
Section 4.06 President...............................................14
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Section 4.07 Chairman of the Board...................................14
Section 4.08 Chief Executive Officer/Chief Operating Officer/Office
of the Chief Executive..................................14
Section 4.09 Vice President..........................................14
Section 4.10 Secretary...............................................14
Section 4.11 Treasurer...............................................15
Section 4.12 Assistant Secretaries...................................15
Section 4.13 Assistant Treasurers....................................15
Section 4.14 Other Officers..........................................16
Section 4.15 Compensation............................................16
Section 4.16 Voting Securities Owned by the Corporation..............16
ARTICLE V CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC...........16
Section 5.01 Execution of Contracts..................................16
Section 5.02 Checks, Drafts, Etc.....................................16
Section 5.03 Deposit.................................................17
Section 5.04 General and Special Bank Accounts.......................17
Section 5.05 Audits, Accounts and Reports............................17
Section 5.06 Access..................................................17
Section 5.07 Fiscal Year.............................................17
Section 5.08 Accounting Policy.......................................17
Section 5.09 Dividends...............................................17
ARTICLE VI SHARES AND THEIR TRANSFER...............................18
Section 6.01 Certificates For Stock..................................18
Section 6.02 Transfer of Stock.......................................18
Section 6.03 Regulations.............................................18
Section 6.04 Lost, Stolen, Destroyed and Mutilated Certificates......19
Section 6.05 Representation of Shares of Other Corporations..........19
ARTICLE VII INDEMNIFICATION.........................................19
Section 7.01 Power To Indemnify in Actions, Suits or Proceedings
Other Than Those by or in the Right of the Corporation..19
Section 7.02 Power To Indemnify in Actions, Suits or Proceedings by
or in the Right of the Corporation......................20
Section 7.03 Authorization of Indemnification........................20
Section 7.04 Good Faith Defined......................................20
Section 7.05 Indemnification by a Court..............................21
Section 7.06 Expenses Payable in Advance.............................21
Section 7.07 Nonexclusivity of Indemnification and Advancement of
Expenses................................................21
Section 7.08 Insurance...............................................21
Section 7.09 Certain Definitions.....................................22
Section 7.10 Survival of Indemnification and Advancement of Expenses.22
Section 7.11 Limitation On Indemnification...........................22
Section 7.12 Indemnification of Employees and Agents.................22
ARTICLE VIII MISCELLANEOUS...........................................23
Section 8.01 Seal....................................................23
Section 8.02 Waiver of Notices.......................................23
Section 8.03 Loans and Guaranties....................................23
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Section 8.04 Gender..................................................23
Section 8.05 Amendments..............................................23
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AMENDED AND RESTATED
BYLAWS
of
KERYX BIOPHARMACEUTICALS, INC.
a Delaware Corporation
ARTICLE I
OFFICES
Section 1.01 Registered Office. The registered office of Keryx
Biopharmaceuticals, Inc. (f/k/a Paramount Capital Pharmaceuticals, Inc.)
(hereinafter called the "Corporation") shall be at such place in the State of
Delaware as shall be designated by the Board of Directors (hereinafter called
the "Board").
Section 1.02 Principal Office. The principal office for the transaction of
the business of the Corporation shall be at such location, within or without the
State of Delaware, as shall be designated by the Board.
Section 1.03 Other Offices. The Corporation may also have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01 Annual Meetings. Annual meetings of the stockholders of the
Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time, date and place as the Board, the Chairman of the Board, if any, the Chief
Executive Officer, if any, or the President, shall determine. If no annual
meeting is held in accordance with the foregoing provisions, a special meeting
may be held in lieu of the annual meeting, and any action taken at that special
meeting shall have the same effect as if it had been taken at the annual
meeting, and in such case all references in these By-laws to the annual meeting
of the stockholders shall be deemed to refer to such special meeting.
Section 2.02 Special Meetings. Special meetings of the stockholders of the
Corporation for any purpose or purposes may be called at any time by the Board,
the Chairman of the Board, if any, the Chief Executive Officer, if any, or the
President, or by
a committee of the Board which, or officer of the corporation who, has been duly
designated by the Board and whose powers and authority, as provided in a
resolution of the Board or in the Amended and Restated Bylaws, include the power
to call such meetings, but such special meetings may not be called by any other
person or persons; provided, however, that if and to the extent that any special
meeting of stockholders may be called by any other person or persons specified
in any provisions of the Certificate of Incorporation or any amendment thereto
or any certificate filed under Section 151(g) of the General Corporation Law of
the State of Delaware (or its successor statute as in effect from time to time
hereafter), then such special meeting may also be called by the person or
persons, in the manner, at the time and for the purposes so specified.
Section 2.03 Place of Meetings. All meetings of the stockholders shall be
held at such places, within or without the State of Delaware, as may from time
to time be designated by the person or persons calling the respective meetings
and specified in the respective notices or waivers of notice thereof. The Board
may, in its sole discretion, determine that a meeting it has called shall not be
held at any place, but may instead be held solely by means of remote
communication in a manner consistent with the Delaware General Corporation Law.
Section 2.04 Notice of Meetings. Except as otherwise required by law,
notice of each meeting of the stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder of record entitled to vote at such meeting (i)
by delivering a typewritten or printed notice thereof to him personally, (ii) by
depositing such notice in the United States mail or overnight delivery service,
in a postage prepaid envelope, (iii) by-hand delivery service, charges prepaid,
directed to him at his address furnished by him to the Secretary of the
Corporation for such purpose or, if he shall not have furnished to the Secretary
his address for such purpose, then at his address last known to the Secretary or
(iv) by transmitting a notice thereof to him at such address by telegraph,
telecopy, cable, wireless or by electronic transmission (consented to in a
manner consistent with the Delaware General Corporation Law, by the stockholder
to whom such electronic notice is given). Except as otherwise expressly required
by law, no publication of any notice of a meeting of the stockholders shall be
required. Every notice of a meeting of the stockholders shall state the place,
if any, date and hour of the meeting and means of remote communication, if any,
by which stockholders and proxyholders may be deemed to be present in person and
vote at such meeting, and, in the case of a special meeting shall also state the
purpose or purposes for which the meeting is called. Except as otherwise
expressly required by law, notice of any adjourned meeting of the stockholders
need not be given if the time and place thereof are announced at the meeting at
which the adjournment is taken. If notice is given by mail, such notice shall be
deemed given when deposited in the United States mail, postage prepaid, directed
to the stockholder at such stockholder's address as it appears on the records of
the corporation. If notice is given by electronic transmission, such notice
shall be deemed given at the time specified in Section 232 of the General
Corporation Law of the State of Delaware.
Whenever notice is required to be given to any stockholder to whom (i)
notice of two consecutive annual meetings, and all notices of meetings or of the
taking of action by
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written consent without a meeting to such person during the period between such
two consecutive annual meetings, or (ii) all, and at least two, payments (if
sent by first class mail) of dividends or interest on securities during a twelve
month period, have been mailed addressed to such person at his address as shown
on the records of the Corporation and have been returned undeliverable, the
giving of such notice to such person shall not be required. Any action or
meeting which shall have been taken or held without notice to such person shall
the same force and effect as if such notice had been duly given. If any such
person shall deliver to the Corporation a written notice setting forth his then
current address, the requirement that notice be given to such person shall be
reinstated.
No notice need be given to any person with whom communication is unlawful,
nor shall there be any duty to apply for any permit or license to give notice to
any such person.
Section 2.05 Quorum. Except as provided by law, the holders of record of a
majority in voting interest of the shares of stock of the Corporation entitled
to be voted, present in person, by means of remote communications in a manner,
if any, authorized by the Board in its sole discretion, or represented by proxy,
shall constitute a quorum for the transaction of business at any meeting of the
stockholders of the Corporation or any adjournment thereof. The stockholders
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum. In the absence of a quorum at
any meeting or any adjournment thereof, a majority in voting interest of the
stockholders present in person, by means of remote communication in a manner, if
any, authorized by the Board in its sole discretion, or represented by proxy and
entitled to vote thereat or, in the absence therefrom of all the stockholders,
any officer entitled to preside at or to act as secretary of such meeting may
adjourn such meeting from time to time. At any such adjourned meeting at which a
quorum is present any business may be transacted which might have been
transacted at the meeting as originally called.
Section 2.06 Voting.
(a) At each meeting of the stockholders, each stockholder shall be entitled
to vote in person, by means of remote communication, if any, by which
stockholders may be deemed to be present in person and vote at such meeting, or
by proxy, each share or fractional share of the stock of the Corporation which
has voting rights on the matter in question and which shall have been held by
him and registered in his name on the books of the Corporation:
(i) on the date fixed pursuant to Section 2.14 of these Amended and
Restated Bylaws as the record date for the determination of stockholders
entitled to notice of and to vote at such meeting, or
(ii) if no such record date shall have been so fixed, then (A) at the
close of business on the day next preceding the day on which notice of the
meeting shall
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be given or (B) if notice of the meeting shall be waived, at the close of
business on the day next preceding the day on which the meeting shall be
held.
(b) Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors in such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Persons holding stock of the Corporation in a fiduciary capacity shall
be entitled to vote such stock. Persons whose stock is pledged shall be entitled
to vote, unless in the transfer by the pledgor on the books of the Corporation
he shall have expressly empowered the pledgee to vote thereon, in which case
only the pledgee, or his proxy, may represent such stock and vote thereon. Stock
having voting power standing of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety or otherwise, or with respect to which two or more
persons have the same fiduciary relationship, shall be voted in accordance with
the provisions of the General Corporation Law of Delaware.
(c) Any such voting rights may be exercised by the stockholder entitled
thereto in person or by his proxy appointed by an instrument in writing,
subscribed by such stockholder or by his attorney thereunto authorized and
delivered to the secretary of the meeting; provided, however, that no proxy
shall be voted or acted upon after three years from its date unless said proxy
shall provide for a longer period. The attendance at any meeting of a
stockholder who may theretofore have given a proxy shall not have the effect of
revoking the same unless he shall in writing so notify the secretary of the
meeting prior to the voting of the proxy. At any meeting of the stockholders all
matters, except as otherwise provided in the Certificate of Incorporation, in
these Amended and Restated Bylaws or by law, shall be decided by the vote of a
majority in voting interest of the stockholders present in person, by means of
remote communications in a manner, if any, authorized by the Board in its sole
discretion, or represented by proxy and entitled to vote thereat and thereon.
The stockholders present at a duly called or held meeting at which a quorum is
present may continue to do business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum. The vote at any
meeting of the stockholders on any question need not be by ballot, unless so
directed by the chairman of the meeting. On a vote by ballot, each ballot shall
be signed by the stockholder voting, or by his proxy if there be such proxy, and
it shall state the number of shares voted.
Section 2.07 List of Stockholders. The Secretary of the Corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, 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 notice of a 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 be produced and
kept at the time
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and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present. If the meeting is to be held solely by means of
remote communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting.
Section 2.08 Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to which the stockholders of record of the Corporation are to
be determined. The stockholders are entitled to examine the stock ledger, the
list required by Section 2.07 of this Article II or the books of the
Corporation, or to vote in person, by means of remote communications in a
manner, if any, authorized by the Board in its sole discretion, or by proxy at
any meeting of stockholders.
Section 2.09 Nomination of Directors.
(a) Except for (i) any directors entitled to be elected by the holders of
preferred stock or any other securities of the corporation (other than common
stock) and (ii) any directors elected in accordance with Section 3.05 hereof by
the Board to fill a vacancy, only persons who are nominated in accordance with
the procedures in this Section 2.09 shall be eligible for election as directors.
Nomination for election to the Board of the corporation at a meeting of
stockholders may be made (i) by or at the direction of the Board or (ii) by any
stockholder of the corporation who (x) complies with the notice procedures set
forth in Section 2.09(b) and (y) is a stockholder of record on the date of the
giving of such notice and on the record date for the determination of
stockholders entitled to vote at such meeting.
(b) To be timely, a stockholder's notice must be received by the Secretary
at the principal executive offices of the corporation as follows: (x) in the
case of an election of directors at an annual meeting of stockholders, not less
than 60 days nor more than 90 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced by more than 20 days, or delayed by more
than 60 days, from the first anniversary of the preceding year's annual meeting,
a stockholder's notice must be so received not earlier than the ninetieth day
prior to such annual meeting and not later than the close of business on the
later of (A) the sixtieth day prior to such annual meeting and (B) the tenth day
following the day on which notice of the date of such annual meeting was mailed
or public disclosure of the date of such annual meeting was made, whichever
first occurs; or (y) in the case of an election of directors at a special
meeting of stockholders, not earlier than the ninetieth day prior to such
special meeting and not later than the close of business on the later of (i) the
sixtieth day prior to such special meeting and (ii) the tenth day following the
day on which notice of the date of such special meeting was mailed or public
disclosure of the date of such special meeting was made, whichever first occurs.
The stockholder's notice to the Secretary shall set forth: (a) as to each
proposed nominee (i) such person's name, age, business address and, if known,
residence address, (ii) such person's principal occupation or employment, (iii)
the class and number of
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shares of stock of the corporation which are beneficially owned by such person,
and (iv) any other information concerning such person that must be disclosed as
to nominees in proxy solicitations pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended; (b) as to the stockholder giving
the notice (i) such stockholder's name and address, as they appear on the
corporation's books, (ii) the class and number of shares of stock of the
corporation which are owned, beneficially and of record, by such stockholder,
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made by such
stockholder and (iv) a representation that such stockholder intends to appear in
person, by means of remote communications, if any, authorized by the Board in
its sole discretion, or by proxy at the meeting to nominate the person(s) named
in its notice; and (c) as to the beneficial owner, if any, on whose behalf the
nomination is being made (i) such beneficial owner's name and address, (ii) the
class and number of shares of stock of the corporation which are beneficially
owned by such beneficial owner, and (iii) a description of all arrangements or
understandings between such beneficial owner and each proposed nominee and any
other person or persons (including their names) pursuant to which the
nomination(s) are to be made. In addition, to be effective, the stockholder's
notice must be accompanied by the written consent of the proposed nominee to
serve as a director if elected. The corporation may require any proposed nominee
to furnish such other information as may reasonably be required to determine the
eligibility of such proposed nominee to serve as a director of the corporation.
(c) The chairman of any meeting shall, if the facts warrant, determine that
a nomination was not made in accordance with the provisions of this Section
2.09, and if the chairman should so determine, the chairman shall so declare to
the meeting and the defective nomination shall be disregarded.
(d) Except as otherwise required by law, nothing in this Section 2.09 shall
obligate the corporation or the Board to include in any proxy statement or other
stockholder communication distributed on behalf of the corporation or the Board
information with respect to any nominee for director submitted by a stockholder.
Section 2.10 Notice of Business at Annual Meetings.
(a) At any annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (i) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the
Board, (ii) otherwise properly brought before the meeting by or at the direction
of the Board, or (iii) properly brought before the meeting by a stockholder. For
business to be properly brought before an annual meeting by a stockholder, (i)
if such business relates to the election of directors of the corporation, the
procedures in Section 2.09 must be complied with and (ii) if such business
relates to any other matter, the stockholder must (x) have given timely notice
thereof in writing to the Secretary in accordance with the procedures set forth
in Section 2.10(b) and (y) be a stockholder of record on the date of the giving
of such notice and on
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the record date for the determination of stockholders entitled to vote at such
annual meeting.
(b) To be timely, a stockholder's notice must be received by the Secretary
at the principal executive offices of the corporation not less than 60 days nor
more than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is advanced by more than 20 days, or delayed by more than 60 days, from
the first anniversary of the preceding year's annual meeting, a stockholder's
notice must be so received not earlier than the ninetieth day prior to such
annual meeting and not later than the close of business on the later of (A) the
sixtieth day prior to such annual meeting and (B) the tenth day following the
day on which notice of the date of such annual meeting was mailed or public
disclosure of the date of such annual meeting was made, whichever first occurs.
The 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 and
the reasons for conducting such business at the annual meeting, (ii) the name
and address, as they appear on the corporation's books, of the stockholder
proposing such business, and the name and address of the beneficial owner, if
any, on whose behalf the proposal is made, (iii) the class and number of shares
of stock of the corporation which are owned, of record and beneficially, by the
stockholder and beneficial owner, if any, (iv) a description of all arrangements
or understandings between such stockholder or such beneficial owner, if any, and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of the
stockholder or such beneficial owner, if any, in such business, and (v) a
representation that such stockholder intends to appear in person, by means of
remote communications, if any, authorized by the Board in its sole discretion,
or by proxy at the annual meeting to bring such business before the meeting.
Notwithstanding anything in these Amended and Restated Amended and Restated
Bylaws to the contrary, no business shall be conducted at any annual meeting of
stockholders except in accordance with the procedures set forth in this Section
2.10; provided that any stockholder proposal which complies with Rule 14a-8 of
the proxy rules (or any successor provision) promulgated under the Securities
Exchange Act of 1934, as amended, and is to be included in the corporation's
proxy statement for an annual meeting of stockholders shall be deemed to comply
with the requirements of this Section 2.10.
(c) The chairman of any meeting shall, if the facts warrant, determine that
business was not properly brought before the meeting in accordance with the
provisions of this Section 2.10, and if the chairman should so determine, the
chairman shall so declare to the meeting and such business shall not be brought
before the meeting.
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Section 2.11 Conduct of Meetings.
(a) Chairman of Meeting. Meetings of stockholders shall be presided over by
the Chairman of the Board, if any, or in the Chairman's absence by the Vice
Chairman of the Board, if any, or in the Vice Chairman's absence by the Chief
Executive Officer, if any, or in the Chief Executive Officer's absence by the
President, or in the President's absence by a Vice President, or in the absence
of all of the foregoing persons by a chairman designated by the Board, or in the
absence of such designation by a chairman chosen by vote of the stockholders at
the meeting. The Secretary shall act as secretary of the meeting, but in the
Secretary's absence the chairman of the meeting may appoint any person to act as
secretary of the meeting.
(b) Rules, Regulations and Procedures. The Board of Directors of the
corporation may adopt by resolution such rules, regulations and procedures for
the conduct of any meeting of stockholders of the corporation as it shall deem
appropriate including, without limitation, such guidelines and procedures as it
may deem appropriate regarding the participation by means of remote
communication of stockholders and proxyholders not physically present at a
meeting. Except to the extent inconsistent with such rules, regulations and
procedures as adopted by the Board, the chairman of any meeting of stockholders
shall have the right and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such chairman, are
appropriate for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board or prescribed by the chairman of the
meeting, may include, without limitation, the following: (i) the establishment
of an agenda or order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iii)
limitations on attendance at or participation in the meeting to stockholders of
record of the corporation, their duly authorized and constituted proxies or such
other persons as shall be determined; (iv) restrictions on entry to the meeting
after the time fixed for the commencement thereof; and (v) limitations on the
time allotted to questions or comments by participants. Unless and to the extent
determined by the Board or the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
(c) Closing of Polls. The chairman of the meeting shall announce at the
meeting when the polls for each matter to be voted upon at the meeting will be
opened and closed. If no announcement is made, the polls shall be deemed to have
opened when the meeting is convened and closed upon the final adjournment of the
meeting. After the polls close, no ballots, proxies or votes or any revocations
or changes thereto may be accepted.
Section 2.12 Inspector of Election. The directors, the Chairman of the
Board, if any, the Chief Executive Officer, if any, or the President, in advance
of any meeting, may, but need not, appoint one or more inspectors of election to
act at the meeting or any adjournment thereof. If an inspector or inspectors are
not appointed, the person presiding at the meeting may, but need not, appoint
one or more inspectors. In case any person who may be appointed as an inspector
fails to appear or act, the vacancy may be filled by appointment made by the
directors in advance of the meeting or at the
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meeting by the person presiding thereat. Each inspector so appointed shall first
subscribe an oath faithfully to execute the duties of an inspector at such
meeting with strict impartiality and according to the best of his ability. Such
inspectors shall decide upon the qualification of the voters and shall report
the number of shares represented at the meeting and entitled to vote on such
question, shall conduct and accept the votes, and, when the voting is completed,
shall ascertain and report the number of shares voted respectively for and
against the question. Reports of the inspectors shall be in writing and
subscribed and delivered by them to the Secretary of the Corporation. Inspectors
need not be stockholders of the Corporation, and any officer of the Corporation
may be an inspector on any question other than a vote for or against a proposal
in which he shall have a material interest. No director or candidate for the
office of director shall act as an inspector of an election of directors.
Section 2.13 No Stockholder Action Without Meetings. Stockholders of the
Corporation may not take any action by written consent in lieu of a meeting.
Section 2.14 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 receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board and which record date: (i) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor
less than ten days before the date of such meeting and (ii) in the case of any
other action, shall not be more than sixty days prior to such other action. If
no record date is fixed, the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01 General Powers. The property, business and affairs of the
Corporation shall be managed by or under the direction of the Board, which may
exercise all of the powers of the Corporation, except such as are by the
Certificate of Incorporation, by these Amended and Restated Bylaws or by law
conferred upon or reserved to the stockholders.
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Section 3.02 Number and Term. The Board shall consist of one or more
members, the number of which shall be determined from time to time by resolution
of the Board. Directors need not be stockholders of the Corporation. Each
director shall hold office until the next annual meeting of stockholders and
until a successor is elected and qualified or until the director resigns or is
removed.
Section 3.03 Election of Directors. The directors shall be elected by the
stockholders of the Corporation, and at each election the persons receiving the
greatest number of votes, up to the number of directors then to be elected,
shall be the persons then elected. The election of directors is subject to any
provisions contained in the Certificate of Incorporation relating thereto,
including any provisions for a classified board, if any.
Section 3.04 Resignation and Removal. Any director of the Corporation may
resign at any time by giving written notice to the Board or to the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time is not specified, it shall take effect immediately upon
its receipt; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Except as otherwise provided by the Certificate of Incorporation or by law,
any director or the entire Board of Directors may be removed, with or without
cause, by the holders of a majority of shares then entitled to vote at an
election of directors.
Section 3.05 Vacancies. Except as otherwise provided in the Certificate of
Incorporation, any vacancy in the Board, whether because of death, resignation,
disqualification, an increase in the number of directors, or any other cause,
may be filled by vote of the majority of the remaining directors, although less
than a quorum, or by a sole remaining director. Each director so chosen to fill
a vacancy shall hold office until the next annual meeting of stockholders,
subject to his or her successor having been elected and qualified or until he or
she shall resign or shall have been removed. No reduction of the authorized
number of directors shall have the effect of removing any director prior to the
expiration of his term of office.
Upon the resignation of one or more directors from the Board, effective at
a future date, a majority of the directors then in office, including those who
have so resigned, shall have the power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided hereinabove
in the filling of other vacancies.
Section 3.06 Place of Meeting; Meeting by Conference Communications
Equipment. The Board may hold any of its meetings at such place or places within
or without the State of Delaware as the Board may from time to time by
resolution designate or as shall be designated by the person or persons calling
the meeting or in the notice or waiver of notice of any such meeting. Directors
may participate in any regular or special meeting of the Board by means of
conference telephone or similar communications equipment pursuant to which all
persons participating in the meeting of the Board can
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hear each other, and such participation shall constitute presence in person at
such meeting.
Section 3.07 First Meeting. The Board shall meet as soon as practicable
after each annual election of directors and notice of such first meeting shall
not be required.
Section 3.08 Regular Meetings. Regular meetings of the Board may be held at
such times as the Board shall from time to time by resolution determine. If any
day fixed for a meeting shall be a legal holiday at the place where the meeting
is to be held, then the meeting shall be held at the same hour and place on the
next succeeding business day which is not a legal holiday. Except as provided by
law, notice of regular meetings need not be given.
Section 3.09 Special Meetings. Special meetings of the Board may be called
at any time by the Chairman of the Board, if any, the Chief Executive Officer,
if any, the President, the Secretary or by any two (2) directors, to be held at
the principal office of the Corporation, or at such other place or places,
within or without the State of Delaware, as the person or persons calling the
meeting may designate.
Notice of the time and place of special meetings shall be given to each
director either (i) by depositing such notice in the United States mail or
overnight delivery service, in a postage prepaid envelope, or by-hand delivery
service, charges prepaid, addressed to him at his address as it is shown upon
the records of the Corporation, or if it is not so shown on such records or is
not readily ascertainable, at the place in which the meetings of the directors
are regularly held, or by transmitting a notice thereof to him at such address
by telegraph, telecopy or electronic mail, at least twenty-four (24) hours prior
to the time of the holding of such meeting; or (ii) by orally communicating the
time and place of the special meeting to him at least twenty-four (24) hours
prior to the time of the holding of such meeting. Either of the notices as above
provided shall be due, legal and personal notice to such director.
Section 3.10 Quorum and Action. Except as otherwise provided in these
Amended and Restated Bylaws or by law, the presence of a majority of the
authorized number of directors shall be required to constitute a quorum for the
transaction of business at any meeting of the Board, and all matters shall be
decided at any such meeting, a quorum being present, by the affirmative votes of
a majority of the directors present, subject to Section 3.15. In the absence of
a quorum, a majority of directors present at any meeting may adjourn the same
from time to time until a quorum shall be present. Notice of any adjourned
meeting need not be given. The directors shall act only as a Board, and the
individual directors shall have no power as such.
Section 3.11 Action by Consent. 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 to the action in writing or by electronic transmission, and the written
consents and electronic transmissions are filed with the minutes of proceedings
of the Board or Committee.
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Section 3.12 Compensation. No stated salary need be paid to directors, as
such, for their services but, as fixed from time to time by resolution of the
Board, the directors may receive directors' fees, compensation and reimbursement
for expenses for attendance at directors' meetings, for serving on committees
and for discharging their duties; provided that nothing herein contained shall
be construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 3.13 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 the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent permitted by law and 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.
Unless the Board otherwise provides, each committee designated by the Board
may make, alter and repeal rules for conduct of its business. In the absence of
such rules each committee shall conduct its business in the same manner as the
Board conducts its business pursuant to these Amended and Restated Bylaws. Any
such committee shall keep written minutes of its meetings and report the same to
the Board when required.
Section 3.14 Officers of the Board. A Chairman of the Board or a Vice
Chairman may be appointed from time to time by the Board and shall have such
powers and duties as shall be designated by the Board.
Section 3.15 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
disinterested stockholders; or (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized,
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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 4.01 Officers. The officers of the Corporation shall be a
President, a Secretary and a Treasurer. The Corporation may also have, at the
discretion of the Board, a Chairman of the Board, a Chief Executive Officer, one
or more Vice Presidents, one or more Assistant Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers and such other officers
as may be appointed in accordance with the provisions of Section 4.03 of these
Amended and Restated Bylaws. One person may hold two or more offices, except
that the Secretary may not also hold the office of President.
Section 4.02 Election and Term. The officers of the Corporation, except
such officers as may be appointed in accordance with the provisions of Section
4.03 or Section 4.05 of these Amended and Restated Bylaws, shall be chosen
annually by the Board, and each shall hold his office until he shall resign or
shall be removed or otherwise disqualified to serve, or until his successor
shall be elected and qualified.
Section 4.03 Subordinate Officers. The Board may appoint, or may authorize
the Chief Executive Officer, if any, or the President to appoint, such other
officers as the business of the Corporation may require, each of whom shall have
such authority and perform such duties as are provided in these Amended and
Restated Bylaws or as the Board, the Chief Executive Officer, if any, or the
President from time to time may specify, and shall hold office until he shall
resign or shall be removed or otherwise disqualified to serve.
Section 4.04 Removal and Resignation. Any officer may be removed, with or
without cause, by a majority of the directors at the time in office, at any
regular or special meeting of the Board, or, except in case of an officer chosen
by the Board, by the Chief Executive Officer, if any, or President upon whom
such power of removal may be conferred by the Board.
Any officer may resign at any time by giving written notice to the Board,
the Chairman of the Board, the Chief Executive Officer, if any, the President or
the Secretary of the Corporation. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein; and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 4.05 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner
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prescribed in the Amended and Restated Bylaws for the regular appointments to
such office.
Section 4.06 President. Except as may be provided in accordance with
Section 4.08, the President of the Corporation shall, subject to the control of
the Board, have general supervision, direction and control of the business and
affairs of the Corporation. He shall preside at all meetings of stockholders and
the Board. He shall have the general powers and duties of management usually
vested in the chief executive officer of a corporation, and shall have such
other powers and duties with respect to the administration of the business and
affairs of the Corporation as may from time to time be assigned to him by the
Board or as prescribed by the Amended and Restated Bylaws.
Section 4.07 Chairman of the Board. The Chairman of the Board, if any,
shall preside at all meetings of the stockholders and the Board and exercise and
perform such other powers and duties with respect to the administration of the
business and affairs of the Corporation as may from time to time be assigned to
him by the Board or as is prescribed by these Amended and Restated Bylaws.
Section 4.08 Chief Executive Officer/Chief Operating Officer/Office of the
Chief Executive. In the event the Board of Directors elects a Chief Executive
Officer and/or a Chief Operating Officer, or establishes an Office of the Chief
Executive, the person or persons so elected or the members of such office shall
individually or jointly, as the case may be, have general and active management
of the property, business and affairs of the Corporation, subject to the
supervision and control of the Board. The Chief Executive Officer, the Chief
Operating Officer, or members of the Office of the Chief Executive, as the case
may be, also shall have such powers and perform such other duties as prescribed
from time to time by the Board of Directors.
Section 4.09 Vice President. The Vice President(s), if any, shall exercise
and perform such powers and duties with respect to the administration of the
business and affairs of the Corporation as from time to time may be assigned to
each of them by the President, by the Chief Executive Officer, if any, by the
Chairman of the Board, if any, or by the Board or as is prescribed by the
Amended and Restated Bylaws. In the absence or disability of the Chief Executive
Officer, if any, and the President, the Vice Presidents, in order of their rank
as fixed by the Board, or if not ranked, the Vice President designated by the
Board, shall perform all of the duties of the President and when so acting shall
have all of the powers of and be subject to all the restrictions upon the Chief
Executive Officer, if any, and the President.
Section 4.10 Secretary. The Secretary shall keep, or cause to be kept, a
book of minutes at the principal office for the transaction of the business of
the Corporation, or such other place as the Board may order, of all meetings of
directors and stockholders, with the time and place of holding, whether regular
or special, and if special, how authorized and the notice thereof given, the
names of those present at directors' meetings, the number of shares present or
represented at stockholders' meetings and the proceedings thereof.
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The Secretary shall keep, or cause to be kept, at the principal office for
the transaction of the business of the Corporation or at the office of the
Corporation's transfer agent, a share register, or a duplicate share register,
showing the names of the stockholders and their addresses, the number and
classes of shares held by each, the number and date of certificates issued for
the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the meetings
of the stockholders and of the Board required by these Amended and Restated
Bylaws or by law to be given, and he shall keep the seal of the Corporation in
safe custody, and shall have such other powers and perform such other duties as
may be prescribed by the Board or these Amended and Restated Bylaws. If for any
reason the Secretary shall fail to give notice of any special meeting of the
Board called by one or more of the persons identified in Section 3.09 of these
Amended and Restated Bylaws, or if he shall fail to give notice of any special
meeting of the stockholders called by one or more of the persons identified in
Section 2.02 of these Amended and Restated Bylaws, then any such person or
persons may give notice of any such special meeting.
Section 4.11 Treasurer. The Treasurer shall keep and maintain or cause to
be kept and maintained, adequate and correct accounts of the properties and
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and
shares. Any surplus, including earned surplus, paid-in surplus and surplus
arising from a reduction of capital, shall be classified according to source and
shown in a separate account. The books of account at all reasonable times shall
be open to inspection by any director.
The Treasurer shall deposit all moneys and other valuables in the name and
to the credit of the Corporation with such depositories as may be designated by
the Board. He shall disburse the funds of the Corporation as may be ordered by
the Board, shall render to the President, to the Chief Executive Officer, if
any, and to the directors, whenever they request it, an account of all of his
transactions as Treasurer and of the financial condition of the Corporation, and
shall have such other powers and perform such other duties as may be prescribed
by the Board or these Amended and Restated Bylaws.
Section 4.12 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 Chief Executive Officer, if any, 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 4.13 Assistant Treasurers. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be as
signed to them by the Board of Directors, the Chief Executive Officer, if any,
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
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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 4.14 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.
Section 4.15 Compensation. The compensation of the officers of the
Corporation, if any, shall be fixed from time to time by the Board.
Section 4.16 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 Chief Executive Officer, if any,
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.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 5.01 Execution of Contracts. The Board, except as otherwise
provided in these Amended and Restated Bylaws, may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument
in the name and on behalf of the Corporation, and such authority may be general
or confined to specific instances; and unless so authorized by the Board or by
these Amended and Restated Bylaws, 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 in any amount.
Section 5.02 Checks, Drafts, Etc. All checks, drafts or other orders for
payment of money, notes or other evidence of indebtedness, issued in the name of
or payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board. Each such person shall give such bond, if any, as the
Board may require.
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Section 5.03 Deposit. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board may select, or as may
be selected by any officer or officers, assistant or assistants, agent or
agents, attorney or attorneys, of the Corporation to whom such power shall have
been delegated by the Board. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, the President, the Chief
Executive Officer, any Vice President or the Treasurer (or any other officer or
officers, assistant or assistants, agent or agents, or attorney or attorneys of
the Corporation who shall be determined by the Board from time to time) may
endorse, assign and deliver checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation.
Section 5.04 General and Special Bank Accounts. The Board from time to time
may authorize the opening and keeping of general and special bank accounts with
such banks, trust companies or other depositories as the Board may select or as
may be selected by an officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these Amended and Restated Bylaws, as it may deem expedient.
Section 5.05 Audits, Accounts and Reports. The books of account of the
Company shall be audited at least once during each year by a firm of independent
certified accountants.
Section 5.06 Access. All books and records of the Company shall be kept at
the principal place of business of the Company. Each shareholder may at its own
expense, after giving written notice to the Company, audit, investigate and
familiarize itself with the operations of the Company using its own employees or
such certified public accounting firm, qualified external auditor or other
advisers as it may select. The shareholders' rights under this Section, which
shall include the right to make copies of any relevant documents, shall be
exercised such that the actions of the shareholders or their respective agents
do not interfere unreasonably with the operation of the Company in its ordinary
course of business.
Section 5.07 Fiscal Year. The fiscal year of the Company shall end on the
last day of each calendar year.
Section 5.08 Accounting Policy. The Company shall maintain accounting
records, accounts and related financial statements in accordance with United
States generally accepted accounting principles applied on a consistent basis.
Section 5.09 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
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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.
ARTICLE VI
SHARES AND THEIR TRANSFER
Section 6.01 Certificates For Stock. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, in such
form as the Board shall prescribe, certifying the number and class of shares of
the stock of the Corporation owned by him. The certificates representing shares
of such stock shall be numbered in the order in which they shall be issued and
shall be signed in the name of the Corporation by the Chairman of the Board, the
President or a Vice President and by the Secretary or an Assistant Secretary or
by the Treasurer or an Assistant Treasurer. Any or all of the signatures on the
certificates may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
such certificate shall thereafter have ceased to be such officer, transfer agent
or registrar before such certificate is issued, such certificate may
nevertheless be issued by the Corporation with the same effect as though the
person who signed such certificate, or whose facsimile signature shall have been
placed thereupon, were such officer, transfer agent or registrar at the date of
issue. A record shall be kept of the respective names of the persons, firms or
corporations owning the stock represented by such certificates, the number and
class of shares represented by such certificates, respectively, and the
respective dates thereof, and in case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the Corporation for exchange or
transfer shall be canceled, and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been so canceled, except in cases provided for in Section 6.04 of
these Amended and Restated Bylaws.
Section 6.02 Transfer of Stock. Transfer of shares of stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary, or with a transfer clerk or a
transfer agent appointed as provided in Section 6.03 of these Amended and
Restated Bylaws, and upon surrender of the certificate or certificates for such
shares properly endorsed and the payment of all taxes thereon. The person in
whose name shares of stock stand on the books of the Corporation shall be deemed
the owner thereof for all purposes as regards the Corporation. Whenever any
transfer of shares shall be made for collateral security, and not absolutely,
such fact shall be stated expressly in the entry of transfer if, when the
certificate or certificates shall be presented to the Corporation for transfer,
both the transferor and the transferee request the Corporation to do so.
Section 6.03 Regulations. The Board may make such rules and regulations as
it may deem expedient, not inconsistent with these Amended and Restated Bylaws,
concerning the issue, transfer and registration of certificates for shares of
the
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stock of the Corporation. The Board may appoint, or authorize any officer or
officers to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.
Section 6.04 Lost, Stolen, Destroyed and Mutilated Certificates. In any
case of loss, theft, destruction, or mutilation of any certificate of stock,
another may be issued in its place upon proof of such loss, theft, destruction,
or mutilation and upon the giving of a bond of indemnity to the Corporation in
such form and in such sums as the Board may direct; provided, however, that a
new certificate may be issued without requiring any bond when, in the judgment
of the Board, it is proper to do so.
Section 6.05 Representation of Shares of Other Corporations. The President
or any Vice President and the Secretary or any Assistant Secretary of this
Corporation are authorized to vote, represent and exercise on behalf of this
Corporation all rights incident to all shares of any other corporation or
corporations standing in the name of this Corporation. The authority herein
granted to said officers to vote or represent on behalf of this Corporation any
and all shares held by this Corporation in any other corporation or corporations
may be exercised either by such officers in person or by any person authorized
so to do by proxy or power of attorney duly executed by said officers.
ARTICLE VII
INDEMNIFICATION
Section 7.01 Power To Indemnify in Actions, Suits or Proceedings Other Than
Those by or in the Right of the Corporation. Subject to Section 7.03 of this
Article VII, 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 or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the Corporation
as a director or officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan 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.
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Section 7.02 Power To Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation. Subject to Section 7.03 of this Article VII, 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 or officer of the Corporation, or is or was a
director or officer of the Corporation 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 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 7.03 Authorization of Indemnification. Any indemnification under
this Article VII (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 or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section 7.01
or Section 7.02 of this Article VII, 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 who were not parties to such action, suit
or proceeding. To the extent, however, that a director or officer 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 7.04 Good Faith Defined. For purposes of any determination under
Section 7.03 of this Article VII, 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 7.04 shall
mean any other corporation or any
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partnership, joint venture, trust, employee benefit plan 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 7.04 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 7.01 or 7.02 of this Article VII, as the case may be.
Section 7.05 Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 7.03 of this Article VII, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under Sections
7.01 and 7.02 of this Article VII. The basis of such indemnification by a court
shall be a determination by such court that indemnification of the director or
officer is proper in the circumstances because he has met the applicable
standards of conduct set forth in Sections 7.01 or 7.02 of this Article VII, as
the case may be. Neither a contrary determination in the specific case under
Section 7.03 of this Article VII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director
or officer seeking indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification pursuant to this Section
7.05 shall be given to the Corporation promptly upon the filing of such
application. If successful, in whole or in part, the director or officer seeking
indemnification shall also be entitled to be paid the expense of prosecuting
such application.
Section 7.06 Expenses Payable in Advance. Expenses incurred by a director
or officer in defending or investigating a threatened or pending action, suit or
proceeding shall 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 such director or officer 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 VII.
Section 7.07 Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant
to this Article VII 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 7.01 and
7.02 of this Article VII shall be made to the fullest extent permitted by law.
The provisions of this Article VII shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 7.01 or 7.02 of
this Article VII 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 7.08 Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director or officer of the Corporation,
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or is or was a director or officer of the Corporation 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 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 VII.
Section 7.09 Certain Definitions. For purposes of this Article VII,
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 or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, shall stand in
the same position under the provisions of this Article VII with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued. For purposes of
this Article VII, references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and references to "serving
at the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article VII.
Section 7.10 Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VII shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Section 7.11 Limitation On Indemnification. Notwithstanding anything
contained in this Article VII to the contrary, except for proceedings to enforce
rights to indemnification (which shall be governed by Section 7.05 hereof), the
Corporation shall not be obligated to indemnify any director or officer in
connection with a proceeding (or part thereof) initiated by such person unless
such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 7.12 Indemnification of Employees and Agents. The Corporation may,
to the extent authorized from time to time by the Board of Directors, provide
rights to indemnification and to the advancement of expenses to employees and
agents of the Corporation similar to those conferred in this Article VII to
directors and officers of the Corporation.
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ARTICLE VIII
MISCELLANEOUS
Section 8.01 Seal. The Board shall provide a corporate seal, which shall be
in the form of a circle and shall bear the name of the Corporation and words and
figures showing that the Corporation was incorporated in the State of Delaware
and showing the year of incorporation.
Section 8.02 Waiver of Notices. Whenever notice is required to be given
under any provision of these Amended and Restated Bylaws, the Certificate of
Incorporation or by law, a written waiver, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when a person attends a meeting for the
express purpose of objecting at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors, or members of a committee of directors
need be specified in any written waiver of notice unless required by the
Certificate of Incorporation.
Section 8.03 Loans and Guaranties. The Corporation may lend money to, or
guarantee any obligation of, and otherwise assist any officer or other employee
of the Corporation or of its subsidiaries, including any officer who is a
director, whenever, in the judgment of the Board, such loan, guaranty or
assistance may reasonably be expected to benefit the Corporation. The loan,
guaranty, or other assistance may be with or without interest, and may be
unsecured or secured in such manner as the Board shall approve, including,
without limitation, a pledge of shares of stock of the Corporation.
Section 8.04 Gender. All personal pronouns used in these Amended and
Restated Bylaws shall include the other genders, whether used in the masculine,
feminine or neuter gender, and the singular shall include the plural, and vice
versa, whenever and as often as may be appropriate.
Section 8.05 Amendments. These Amended and Restated Bylaws, or any of them,
may be rescinded, altered, amended or repealed, and new Amended and Restated
Bylaws may be made (i) by the Board, by vote of a majority of the number of
directors then in office as directors, acting at any meeting of the Board or
(ii) by the stockholders, by the vote of at least seventy-five (75%) of the
outstanding shares of voting stock of the Corporation, at an annual meeting of
stockholders, without previous notice, or at any special meeting of
stockholders, provided that notice of such proposed amendment, modification,
repeal or adoption is given in the notice of special meeting; provided, however,
that Section 2.02 of these Amended and Restated Bylaws can only be amended if
that Section as amended would not conflict with the Corporation's Certificate of
Incorporation. Any Bylaw made or altered by the stockholders may be altered or
repealed by the Board or may be altered or repealed by the stockholders.
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