EXHIBIT 3.3
AMENDED AND RESTATED
BY-LAWS OF
ICN PHARMACEUTICALS, INC.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
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(AS OF NOVEMBER 2, 2000)
SECTION 1. Registered Office. The registered office of the Corporation
within the State of Delaware shall be in the City of Wilmington, County of
New Castle.
SECTION 2. Other Offices. The Corporation may also have an office or
offices other than said registered office at such place or places, either
within or without the State of Delaware, as the Board of Directors shall
from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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SECTION 1. Place of Meetings. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at any such
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 meeting or in a duly executed waiver thereof.
SECTION 2. Annual Meeting. The annual meetings of the stockholders,
commencing with the year 1995, shall be held at such time as shall be
designated from time to time by the Board of Directors and stated in the
notice of meeting. At such annual meeting, 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.
SECTION 3. Special Meetings. Subject to the rights of the holders of
any class or series of Preferred Stock, special meetings of stockholders,
unless otherwise prescribed by statute, may only be called, at any time, by
the Board of Directors or the Chairman of the Board, if one shall have been
elected.
SECTION 4. Notice of Meetings. Except as otherwise expressly required
by statute, written notice of each annual and special meeting of
stockholders stating the date, place and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called, shall be given to each stockholder of record entitled to vote
thereat not less than ten nor more than sixty days before the date of the
meeting. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice. Notice shall be given
personally or by mail and, if by mail, shall be sent in a postage prepaid
envelope, addressed to the stockholder at his address as it appears on the
records of the Corporation. Notice by mail shall be deemed given at the
time when the same shall be deposited in the United States mail, postage
prepaid. Notice of any meeting shall not be required to be given to any
person who attends such meeting, except when such person attends the
meeting in person or by proxy 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, or who, either before or after
the meeting, shall submit a signed written waiver of notice, in person or
by proxy. Neither the business to be transacted at, nor the purpose of, an
annual or special meeting of stockholders need be specified in any written
waiver of notice.
SECTION 5. List of Stockholders. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days
before each meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, showing
the address of 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, town or village where the meeting is to be held, which
place shall be specified in the notice of meeting, or, if not specified, at
the place where the meeting is to be held. The list shall be produced and
kept at the time and place of the meeting during the whole time thereof,
and may be inspected by any stockholder who is present.
SECTION 6. Quorum, Adjournments. The holders of a majority of the
voting power of the issued and outstanding stock of the Corporation
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum for the transaction of business at all meetings of
stockholders, except as otherwise provided by statute or by the Certificate
of Incorporation. If, however, such quorum shall not be present or
represented by proxy at any meeting of stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall
have the 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 by proxy. At such adjourned meeting at which a quorum shall be
present or represented by proxy, any business may be transacted which might
have been transacted at the meeting as originally called. If the
adjournment is for more than thirty days, or, if after adjournment a new
record date is set, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
SECTION 7. Organization. At each meeting of stockholders, the Chairman
of the Board, if one shall have been elected, or, in his absence or if one
shall not have been elected, the President shall act as chairman of the
meeting. The Secretary or, in his absence or inability to act, the person
whom the chairman of the meeting shall appoint secretary of the meeting
shall act as secretary of the meeting and keep the minutes thereof.
SECTION 8. Order of Business. The order of business at all meetings of
the stockholders shall be as determined by the chairman of the meeting.
SECTION 9. Voting. Except as otherwise provided by statute or the
Certificate of Incorporation, each stockholder of the Corporation shall be
entitled at each meeting of stockholders to one vote for each share of
capital stock of the Corporation standing in his name on the record of
stockholders of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 7 of
Article V of these By-Laws as the record date for the determination of
the stockholders who shall be entitled to notice of and to vote at
such meeting; or
(b) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice
thereof shall be given, or, if notice is waived, at the close of
business on the date next preceding the day on which the meeting is
held.
Each stockholder entitled to vote at any meeting of stockholders may
authorize another person or persons to act for him by a proxy signed by
such stockholder or his attorney-in-fact, but no proxy shall be voted after
three years from its date, unless the proxy provides for a longer period.
Any such proxy shall be delivered to the secretary of the meeting at or
prior to the time designated in the order of business for so delivering
such proxies. When a quorum is present at any meeting, the vote of the
holders of a majority of the voting power of the issued and outstanding
stock of the Corporation entitled to vote thereon, present in person or
represented by proxy, shall decide any question brought before such
meeting, unless the question is one upon which by express provision of
statute or of the Certificate of Incorporation or of these By-Laws, a
different vote is required, in which case such express provision shall
govern and control the decision of such question. Unless required by
statute, or determined by the chairman of the meeting to be advisable, the
vote on any question need not be by ballot. On a vote by ballot, each
ballot shall be signed by the stockholder voting, or by his proxy, if there
by such proxy, and shall state the number of shares voted.
SECTION 10. Inspectors. The Board of Directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If any of the inspectors so appointed
shall fail to appear or act, the chairman of the meeting shall, or if
inspectors shall not have been appointed, the chairman of the meeting may,
appoint one or more inspectors. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector at such meeting with strict impartiality and
according to the best of his ability. The inspectors shall determine the
number of shares of capital stock of the Corporation outstanding and the
voting power of each, the number of shares represented at the meeting, the
existence of a quorum, the validity and effect of proxies, and shall
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, determine the results, and do such acts as
are proper to conduct the election or vote with fairness to all
stockholders. On request of the chairman of the meeting, the inspectors
shall make a report in writing of any challenge, request or matter
determined by them and shall execute a certificate of any fact found by
them. No director or candidate for the office of director shall act as an
inspector of an election of directors. Inspectors need not be stockholders.
SECTION 11. No Action by Consent. Whenever the vote of stockholders at
a meeting thereof is required or permitted to be taken for or in connection
with any corporate action, by any provision of statute or of the
Certificate of Incorporation or of these By-Laws, such vote may be taken
only upon the vote of the stockholders at an annual or special meeting duly
called and may not be taken by written consent of the stockholders.
ARTICLE III
BOARD OF DIRECTORS
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SECTION 1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors. The
Board of Directors may exercise all such authority and powers of the
Corporation and do all such lawful acts and things as are not by statute or
the Certificate of Incorporation directed or required to be exercised or
done by the stockholders.
SECTION 2. Number, Classes, Qualifications, Election and Term of
Office. The number of directors constituting the initial Board of Directors
shall be three. Thereafter, the number of directors may be fixed, from time
to time, by the affirmative vote of a majority of the entire Board of
Directors. The directors shall be divided into three classes, as nearly
equal in number as reasonably possible, with the term of office of the
first class to expire at the 1995 annual meeting of stockholders, the term
of office of the second class to expire at the 1996 annual meeting of
stockholders and the term of office of the third class to expire at the
1997 annual meeting of stockholders. Any decrease in the number of
directors shall be effective at the time of the next succeeding annual
meeting of stockholders unless there shall be vacancies in the Board of
Directors, in which case such decrease may become effective at any time
prior to the next succeeding annual meeting to the extent of the number of
such vacancies. Directors need not be stockholders. Except as otherwise
provided by statute or these By-Laws, at each annual meeting of
stockholders following adoption of these By-Laws, directors shall be
elected to succeed those directors whose terms expire for a term of office
to expire at the third succeeding annual meeting of stockholders after
their election. Each director shall hold office until his successor shall
have been elected and qualified, or until his death, or until he shall have
resigned, or have been removed, as hereinafter provided in these By-Laws.
SECTION 3. Place of Meetings. Meetings of the Board of Directors shall
be held at such place or places, within or without the State of Delaware,
as the Board of Directors may from time to time determine or as shall be
specified in the notice of any such meeting.
SECTION 4. Annual Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of
other business, as soon as practicable after each annual meeting of
stockholders, on the same day and at the same place where such annual
meeting shall be held. Notice of such meeting need not be given. In the
event such annual meeting is not so held, the annual meeting of the Board
of Directors may be held at such other time or place (within or without the
State of Delaware) as shall be specified in a notice thereof given as
hereinafter provided in Section 7 of this Article III.
SECTION 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors
may fix. If any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting which would
otherwise be held on that day shall be held at the same hour on the next
succeeding business day. Notice of regular meetings of the Board of
Directors need not be given except as otherwise required by statute or
these By-Laws.
SECTION 6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if one shall have
been elected, or by two or more directors of the Corporation or by the
President.
SECTION 7. Notice of Meetings. Notice of each special meeting of the
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in this
Section 7, in which notice shall be stated the time and place of the
meeting. Except as otherwise required by these By-Laws, such notice need
not state the purposes of such meeting. Notice of each such meeting shall
be mailed, postage prepaid, to each director, addressed to him at his
residence or usual place of business, by first class mail, at least two
days before the day on which such meeting is to be held, or shall be sent
addressed to him at such place by telegraph, cable, telex, telecopier or
other similar means, or be delivered to him personally or be given to him
by telephone or other similar means, at least twenty-four hours before the
time at which such meeting is to be held. Notice of any such meeting need
not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting, except
when he shall attend 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.
SECTION 8. Quorum and Manner of Acting. A majority of the entire Board
of Directors shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, and, except as otherwise expressly
required by statute or the Certificate of Incorporation or these By-Laws,
the act of a majority of the directors present at any meeting at which a
quorum is present shall be the act of the Board of Directors. In the
absence of a quorum at any meeting of the Board of Directors, a majority of
the directors present thereat may adjourn such meeting to another time and
place. Notice of the time and place of any such adjourned meeting shall be
given to all of the directors unless such time and place were announced at
the meeting at which the adjournment was taken, in which case such notice
shall only be given to the directors who were not present thereat. At any
adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
called. The directors shall act only as a Board and the individual
directors shall have no power as such.
SECTION 9. Organization. At each meeting of the Board of Directors,
the Chairman of the Board, if one shall have been elected, or, in the
absence of the Chairman of the Board or if one shall not have been elected,
the President (or, in his absence, another director chosen by a majority of
the directors present) shall act as chairman of the meeting and preside
thereat. The Secretary or, in his absence, any person appointed by the
chairman shall act as secretary of the meeting and keep the minutes
thereof.
SECTION 10. Resignations. Any director of the Corporation may resign
at any time by giving written notice of his resignation to the Corporation.
Any such resignation shall take effect at the time specified therein or, if
the time when it shall become effective shall not be specified therein,
immediately upon its receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 11. Vacancies. Subject to the rights, if any, of the holders
of any series of Preferred Stock then outstanding, any vacancy in the Board
of Directors, whether arising from death, resignation, removal, an increase
in the number of directors or any other cause, may be filled only by the
vote of a majority of the directors then in office, though less than a
quorum, or by the sole remaining director. Each director so chosen shall
hold office for a term expiring at the annual meeting of stockholders at
which the term of office of the class to which they have been elected
expires, or in the case of newly created directorships, shall hold office
until such time as determined by the directors electing such new director.
SECTION 12. Removal of Directors. Subject to the rights, if any, of
the holders of any class or series of Preferred Stock then outstanding, any
director may be removed from office at any time, but only for cause and
only by the affirmative vote of the holders of at least 66 2/3% of the
voting power of all of the then outstanding capital stock of the
Corporation entitled to vote at an election of directors, voting together
as a single class.
SECTION 13. Compensation. The Board of Directors shall have authority
to fix the compensation, including fees and reimbursement of expenses, of
directors for services to the Corporation in any capacity.
SECTION 14. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or
more committees, including an executive committee, 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 the committee. In addition, in the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not 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 such absent or disqualified member.
Except to the extent restricted by statute or the Certificate of
Incorporation, each such committee, to the extent provided in the
resolution creating it, shall have and may exercise all the powers and
authority of the Board of Directors and may authorize the seal of the
Corporation to be affixed to all papers which require it. Each such
committee shall serve at the pleasure of the Board of Directors and have
such name as may be determined from time to time by resolution adopted by
the Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors.
SECTION 15. Action by Consent. Unless restricted by the Certificate of
Incorporation, any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if all
members of the Board of Directors or such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of the Board of Directors or such committee, as
the case may be.
SECTION 16. Telephonic Meeting. Unless restricted by the Certificate
of Incorporation, any one or more members of the Board of Directors or any
committee thereof 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. Participation by such means shall constitute presence in
person at a meeting.
SECTION 17. The 2001 and 2002 Annual Meeting. The 2001 annual meeting
of stockholders shall be held not later than May 30, 2001, and the 2002
annual meeting of stockholders shall be held not later than May 29, 2002.
At each of the 2000 annual meeting of stockholders, the 2001 annual meeting
of stockholders and the 2002 annual meeting of stockholders, the
stockholders shall be entitled to elect three directors; provided, the
number of directors to be elected at the 2002 annual meeting of
stockholders when taken together with the number of directors elected at
the 2001 annual meeting of stockholders shall in no event, constitute less
than two-thirds of the entire Board of Directors at the date of the 2002
annual meeting of stockholders. Notwithstanding Article VIII of these
By-Laws, this Section of the By-Laws may be amended or repealed, or a new
By-Law adopted that is inconsistent with this By-Law, only (a) by the
affirmative vote of the holders of not less than 75% of the voting power of
all securities of the Corporation entitled to vote generally in the
election of directors or (b) by the affirmative vote of the entire Board of
Directors at a regular or special meeting thereof.
ARTICLE IV
OFFICERS
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SECTION 1. Number and Qualifications. The officers of the Corporation
shall be elected by the Board of Directors and shall include the President,
one or more Vice-Presidents, the Secretary and the Treasurer. If the Board
of Directors wishes, it may also elect as an officer of the Corporation a
Chairman of the Board and may elect other officers (including one or more
Assistant Treasurers and one or more Assistant Secretaries) as may be
necessary or desirable for the business of the Corporation. Any two or more
offices may be held by the same person, and no officer except the Chairman
of the Board need be a director. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified, or until
his death, or until he shall have resigned or have been removed, as
hereinafter provided in these By-Laws.
SECTION 2. Resignations. Any officer of the Corporation may resign at
any time by giving written notice of his resignation to the Corporation.
Any such resignation shall take effect at the time specified therein or, if
the time when it shall become effective shall not be specified therein,
immediately upon receipt. Unless otherwise specified therein, the
acceptance of any such resignation shall not be necessary to make it
effective.
SECTION 3. Removal. Any officer of the Corporation may be removed,
either with or without cause, at any time, by the Board of Directors at any
meeting thereof.
SECTION 4. Chairman of the Board. The Chairman of the Board, if one
shall have been elected, shall be a member of the Board, an officer of the
Corporation and, if present, shall preside at each meeting of the Board of
Directors or the stockholders. He shall advise and counsel with the
President, and in his absence with other executives of the Corporation, and
shall perform such other duties as may from time to time be assigned to him
by the Board of Directors.
SECTION 5. The President. The President shall be the chief executive
officer of the Corporation. He shall, in the absence of the Chairman of the
Board or if a Chairman of the Board shall not have been elected, preside at
each meeting of the Board of Directors or the stockholders. He shall
perform all duties incident to the office of President and chief executive
officer and such other duties as may from time to time be assigned to him
by the Board of Directors.
SECTION 6. Vice-President. Each Vice-President shall perform all such
duties as from time to time may be assigned to him by the Board of
Directors or the President. At the request of the President or in his
absence or in the event of his inability or refusal to act, the
Vice-President, or if there shall be more than one, the Vice-Presidents in
the order determined by the Board of Directors (or if there be no such
determination, then the Vice-Presidents in the order of their election),
shall perform the duties of the President, and, when so acting, shall have
the powers of and be subject to the restrictions placed upon the President
in respect of the performance of such duties.
SECTION 7. Treasurer. The Treasurer shall:
(a) have charge and custody of, and be responsible for, all the
funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements
in books belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of the
Corporation in such depositaries as may be designated by the Board of
Directors or pursuant to its direction;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investments of its funds, taking proper vouchers therefore;
(f) render to the Board of Directors, whenever the Board of
Directors may require, an account of the financial condition of the
Corporation; and
(g) in general, perform all duties incident to the office of
Treasurer and such other duties as from time to time may be assigned
to him by the Board of Directors.
SECTION 8. Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books provided for
the purpose, the minutes of all meetings of the Board of Directors,
the committees of the Board of Directors and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation
and affix and attest the seal to all certificates for shares of the
Corporation (unless the seal of the Corporation on such certificates
shall be a facsimile, as hereinafter provided) and affix and attest
the seal to all other documents to be executed on behalf of the
Corporation under its seal;
(d) see that the books, reports, statements, certificates and
other documents and records required by law to be kept and filed are
properly kept and filed; and
(e) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned
to him by the Board of Directors.
SECTION 9. The Assistant Treasurer. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors (or if there be no such determination,
then in the order of their election), shall, in the absence of the
Treasurer or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the Treasurer and shall perform such
other duties as from time to time may be assigned by the Board of
Directors.
SECTION 10. The Assistant Secretary. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries in the order determined
by the Board of Directors (or if there be no such determination, then in
the order of their election), shall, in the absence of the Secretary or in
the event of his inability or refusal to act, perform the duties and
exercise the powers of the Secretary and shall perform such other duties as
from time to time may be assigned by the Board of Directors.
SECTION 11. Officers' Bonds or Other Security. If required by the
Board of Directors, any officer of the Corporation shall give a bond or
other security for the faithful performance of his duties, in such amount
and with such surety as the Board of Directors may require.
SECTION 12. Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to
time by the Board of Directors. An officer of the Corporation shall not be
prevented from receiving compensation by reason of the fact that he is also
a director of the Corporation.
ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
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SECTION 1. Stock Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the
name of the Corporation by, the Chairman of the Board or the President or a
Vice-President and 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. If the Corporation shall
be authorized to issue more than one class of stock or more than one series
of any class, the designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof
and the qualifications, limitations or restriction of such preferences
and/or rights shall be set forth in full or summarized on the face or back
of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in
Section 202 of the General Corporation Law of the State of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the Corporation will furnish
without charge to each stockholder who so requests the designations,
preferences and relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 2. Facsimile Signatures. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he 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 or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been
lost, stolen, or destroyed. When authorizing such issue of a new
certificate or certificates, 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 certificates, or his legal
representative, to give the Corporation a bond in such sum as it may direct
sufficient to indemnify it against any claim that may be made against the
Corporation on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate.
SECTION 4. Transfers of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to issue a
new certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its records; provided, however, that the
Corporation shall be entitled to recognize and enforce any lawful
restriction on transfer. Whenever any transfer of stock shall be made for
collateral security, and not absolutely, it shall be so expressed in the
entry of transfer if, when the certificates are presented to the
Corporation for transfer, both the transferor and the transferee request
the Corporation to do so.
SECTION 5. Transfer Agents and Registrars. The Board of Directors may
appoint, or authorize any officer or officers to appoint, one or more
transfer agents and one or more registrars.
SECTION 6. Regulations. The Board of Directors may make such
additional rules and regulations, not inconsistent with these By-Laws, as
it may deem expedient concerning the issue, transfer and registration of
certificates for shares of stock of the Corporation.
SECTION 7. Fixing the 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 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 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 8. Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its records as
the owner of shares of stock to receive dividends and to vote as such
owner, shall be entitled to hold liable for calls and assessments a person
registered on its records as the owner of shares of stock, and shall not be
bound to recognize any equitable or other claim to or interest in such
share or shares of stock on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
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SECTION 1. General. 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 corporation, 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. Derivative Actions. 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, provided 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 of the State of Delaware 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. Indemnification in Certain Cases. To the extent 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
referred to in Sections 1 and 2 of this Article VI, 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.
SECTION 4. Procedure. Any indemnification under Sections 1 and 2 of
this Article VI (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 such Sections 1 and 2. Such determination shall be made (a) 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 (b)
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 (c) by the stockholders.
SECTION 5. Advances for Expenses. Expenses incurred in defending a
civil or criminal 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 be ultimately determined
that he is not entitled to be indemnified by the Corporation as authorized
in this Article VI.
SECTION 6. Rights Not-Exclusive. The indemnification and advancement
of expenses provided by, or granted pursuant to, the other subsections of
this Article VI shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled
under any law, by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office.
SECTION 7. Insurance. The Corporation shall have power to 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 to indemnify him against such liability
under the provisions of this Article VI.
SECTION 8. Definition of Corporation. For the purposes of this Article
VI, references to "the Corporation" include all constituent corporations
absorbed in a consolidation or merger as well as the resulting or surviving
corporation so that any person who is or was a director, officer, employee
or agent of such a 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 VI with respect to the resulting or surviving corporation as he
would if he had served the resulting or surviving corporation in the same
capacity.
SECTION 9. Survival of Rights. The indemnification and advancement of
expenses provided by, or granted pursuant to this Article VI shall 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 VII
GENERAL PROVISIONS
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SECTION 1. Dividends. Subject to the provisions of statute and the
Certificate of Incorporation, dividends upon the shares of capital stock of
the Corporation may be declared by the Board of Directors at any regular or
special meeting. Dividends may be paid in cash, in property or in shares of
stock of the Corporation, unless otherwise provided by statute or the
Certificate of Incorporation.
SECTION 2. Reserves. 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 may, from time to time, in its absolute
discretion, think proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of
the Corporation or for such other purpose as the Board of Directors may
think conducive to the interests of the Corporation. The Board of Directors
may modify or abolish any such reserves in the manner in which it was
created.
SECTION 3. Seal. The seal of the Corporation shall be in such form as
shall be approved by the Board of Directors.
SECTION 4. Fiscal Year. The fiscal year of the Corporation shall be
fixed, and once fixed, may thereafter be changed, by resolution of the
Board of Directors.
SECTION 5. Checks, Notes, Drafts, Etc. All checks, notes, drafts or
other orders for the payment of money of the Corporation shall be signed,
endorsed or accepted in the name of the Corporation by such officer,
officers, person or persons as from time to time may be designated by the
Board of Directors or by an officer or officers authorized by the Board of
Directors to make such designation.
SECTION 6. Execution of Contracts, Deeds, Etc. The Board of Directors
may authorize any officer or officers, agent or agents, in the name and on
behalf of the Corporation to enter into or execute and deliver any and all
deeds, bonds, mortgages, contracts and other obligations or instruments,
and such authority may be general or confined to specific instances.
SECTION 7. Voting of Stock in Other Corporations. Unless otherwise
provided by resolution of the Board of Directors, the Chairman of the Board
or the President, from time to time, may (or may appoint one or more
attorneys or agents to) cast the votes which the Corporation may be
entitled to cast as a shareholder or otherwise in any other corporation,
any of whose shares or securities may be held by the Corporation, at
meetings of the holders of the shares or other securities of such other
corporation. In the event one or more attorneys or agents are appointed,
the Chairman of the Board or the President may instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent. The Chairman of the Board or the President may, or may instruct
the attorneys or agents appointed to, execute or cause to be executed in
the name and on behalf of the Corporation and under its seal or otherwise,
such written proxies, consents, waivers or other instruments as may be
necessary or proper in the circumstances.
ARTICLE VIII
AMENDMENTS
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These By-Laws may be amended or repealed or new by-laws adopted (a) by
the affirmative vote of the holders of not less than 75% of the voting
power of all securities of the Corporation entitled to vote generally in
the election of directors or (b) if the Certificate of Incorporation so
provides, by action of the Board of Directors at a regular or special
meeting thereof. Any by-law made by the Board of Directors may be amended
or repealed by action of the stockholders upon the affirmative vote of the
holders of not less than 75% of the voting power of all securities of the
Corporation entitled to vote generally in the election of directors.