EXHIBIT 3.2
As amended through 6/6/97
BY-LAWS
OF
CHANTAL PHARMACEUTICAL CORPORATION
(A DELAWARE CORPORATION)
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ARTICLE I
DEFINITIONS
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As used in these By-Laws, unless the context otherwise requires, the term:
1.1. "ASSISTANT SECRETARY" means an Assistant Secretary of the Corporation.
1.2. "ASSISTANT TREASURER" means an Assistant Treasurer of the Corporation.
1.3. "BOARD" means the Board of Directors of the Corporation.
1.4. "BY-LAWS" means the initial By-Laws of the Corporation, as amended
from time to time.
1.5. "CERTIFICATE OF INCORPORATION" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6. "CORPORATION" means Chantal Pharmaceutical Corporation.
1.7. "DIRECTORS" means Directors of the Corporation.
1.8. "GENERAL CORPORATION LAW" means the General Corporation Law of the
State of Delaware, as amended from time to time.
1.9. "OFFICE OF THE CORPORATION" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.10. "PRESIDENT" means the President of the Corporation.
1.11. "SECRETARY" means the Secretary of the Corporation.
1.12. "STOCKHOLDERS" means the Stockholders of the Corporation.
1.13. "TREASURER" means the Treasurer of the Corporation.
1.14. "VICE PRESIDENT" means the Vice President of the Corporation.
ARTICLE II
OFFICES
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2.1. REGISTERED OFFICE. The Registered Office of the Corporation shall be
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located in such place as may be provided, from time to time, in the Certificate
of Incorporation.
2.2. ADDITIONAL OFFICES. In addition to the Office of the Corporation and
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the Registered Office, the Corporation may also have offices and places of
business at such other places, within or without the State of Delaware, as the
Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE III
STOCKHOLDERS
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3.1. PLACE OF MEETING. Every meeting of the stockholders shall be held at
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the Office of the Corporation or at such other place within or without the State
of Delaware as shall be specified or fixed in the notice of such meeting or in
the waiver of notice thereof.
3.2. ANNUAL MEETING. A meeting of stockholders shall be held annually for
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the election of Directors and for the transaction of other business at such hour
as may be designated in the notice of meeting on the first Monday in April in
each year or such other hour and day as may be designated by the Board of
Directors and specified in the notice of meeting, or if such date falls on a
legal holiday, on the first business day thereafter which is not a Saturday,
Sunday or a legal holiday.
3.3. SPECIAL MEETINGS. Subject to the provisions of the Certificate of
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Incorporation, a special meeting of stockholders, unless otherwise prescribed by
statute, may be called by the President or the Secretary only at the written
request of the holders of at least fifty percent of the voting stock, of all
classes, of the Corporation or upon a unanimous vote of the Board of Directors.
At any special meeting of stockholders only such business may be transacted
which is related to the purpose or purposes of such meeting set forth in the
notice thereof given pursuant to Section 3.5 of the By-Laws or in any waiver of
notice thereof given pursuant to Section 3.6 of the By-Laws.
3.4. FIXING RECORD DATE. For the purpose of determining the stockholders
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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 for the purpose of determining stockholders entitled to
receive payment of any dividend or the allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board may fix, in advance, a
date as the record date for any such determination
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of stockholders. Such date shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) days prior
to any other action. If not such record date is fixed:
3.4(1) 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;
3.4(2) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no
prior action by the Board is necessary, shall be the day on which the first
written consent is expressed;
3.4(3) The record date for determining stockholders for any purpose
other than that specified in Sections 3.4(1) and 3.4(2) shall be at the
close of business on the day on which the Board adopts the resolution
relating thereto.
When a determination of stockholders entitled to notice of or to vote at any
meeting of stockholders has been made as provided in this Section 3.4, such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
3.5. NOTICE OF MEETINGS OF STOCKHOLDERS. Except as otherwise provided in
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Section 3.4 and 3.6 of the By-Laws, whenever under the General Corporation Law
or the Certificate of Incorporation or the By-Laws, stockholders are required or
permitted to take any action at a meeting, written notice shall be given stating
the place, date and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called. A copy of the notice of
any meeting shall be given, personally or by mail, not fewer than ten (10) nor
more than sixty (60) days before the date of the meeting, to each stockholder
entitled to notice of or to vote at such meeting. If mailed, such notice shall
be deemed to be given when deposited in the United States mail, with postage
prepaid, directed to the stockholder at his address as it appears on the records
of the Corporation. An affidavit of the Secretary or an Assistant Secretary or
of the transfer agent of the Corporation that the notice required by this
section has been given shall, in the absence of fraud, be prima facie evidence
of the facts stated therein. When a meeting is adjourned to another time and
place, notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken, and at
the adjourned meeting any business may be transacted that might have been
transacted at the meeting as originally called. If, however, the adjournment is
for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
3.6. WAIVERS OF NOTICE. Whenever notice is required to be given to any
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stockholder under any provision of the General Corporation Law or of the
Certificate of Incorporation or the By-Laws, a written waiver thereof, signed by
the stockholder entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a stockholder at a
meeting shall
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constitute a waiver of notice of such meeting, except when the stockholder
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 need be specified in any
written waiver of notice.
3.7. LIST OF STOCKHOLDERS. The Secretary shall prepare and make, or cause
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to be prepared and made, 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, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
3.8. QUORUM OF STOCKHOLDERS; ADJOURNMENT. Except as otherwise required by
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law or by the Certificate of Incorporation, the holders of a majority of the
shares of stock entitled to vote at any meeting of stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at such meeting. When a quorum is once present to organize a
meeting of stockholders, it is not broken by the subsequent withdrawal of any
stockholders. The holders of a majority of the shares of stock present in
person or represented by proxy at any meeting of stockholders, including an
adjourned meeting, whether or not a quorum is present, may adjourn such meeting
to another time and place.
3.9. VOTING; PROXIES. Unless otherwise provided in the Certificate of
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Incorporation, every stockholder of record shall be entitled at every meeting of
stockholders to one vote for each share of capital stock standing in his name on
the record of stockholders determined in accordance with Section 3.4 of the By-
Laws. If the Certificate of Incorporation provides for more or less than one
vote for any share, on any matter, every reference in the By-Laws or the General
Corporation Law to a majority or other proportion of stock shall refer to such
majority or other proportion of the votes of such stock. The provisions of
Section 212 and 217 of the General Corporation Law shall apply in determining
whether any shares of capital stock may be voted and the persons, if any,
entitled to vote such shares; but the Corporation shall be protected in treating
the persons in whose names shares of capital stock stand on the record of
stockholders as owners thereof for all purposes. At any meeting of stockholders
(at which a quorum was present to organize the meeting), all matters, except as
otherwise provided by law or by the Certificate of Incorporation or by the By-
Laws, shall be decided by a majority of the votes cast at such meeting by the
holders of shares present in person or represented by proxy and entitled to vote
thereon, whether or not a quorum is present when the vote is taken. All
elections of Directors shall be by written ballot unless otherwise provided in
the Certificate of Incorporation. In voting on any other question on which a
vote by ballot is required by law or is demanded by any stockholder entitled to
vote, the voting shall be by ballot. Each ballot shall be signed by the
stockholder voting or by his proxy, and shall state the number of shares voted.
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On all other questions, the voting may be viva voce. Every stockholder entitled
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to vote at a meeting of stockholders or to express consent or dissent without a
meeting may authorize another person or persons to act for him by proxy. The
validity and enforceability of any proxy shall be determined in accordance with
Section 212 of the General Corporation Law.
3.10. SELECTION AND DUTIES OF INSPECTORS AT MEETINGS OF STOCKHOLDERS.
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The Board, in advance of any meeting of stockholders, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed, the person presiding at such meeting may, and on the request
of any stockholder entitled to vote thereat shall, appoint one or more
inspectors. In case any person appointed fails to appear or act, the vacancy
may be filled by appointment made by the Board in advance of the meeting or at
the meeting by the person presiding thereat. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an oath to
faithfully execute the duties of inspector at such meeting with strict
impartiality and according to the best or his or her ability. The inspector or
inspectors shall determine the number of shares outstanding and the voting power
of each, the 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
result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the person presiding at the meeting
or any stockholder entitled to vote thereat, the inspector or inspectors shall
make a report in writing of any challenge, question or matter determined by him
or them and execute a certificate of any fact found by him or them. Any report
or certificate made by the inspector or inspectors shall be prima facie evidence
of the facts stated and of the vote as certified by him or them.
3.11. ORGANIZATION. At every meeting of stockholders, the President,
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or in the absence of the President, a Vice President, and in case more than one
Vice President shall be present, that Vice President designated by the Board (or
in the absence of any such designation, the most senior Vice President, based on
age, present), shall act as chairman of the meeting. The Secretary, or in his
absence one of the Assistant Secretaries, or in the absence of both, a Vice
President shall act as secretary of the meeting. In case none of the officers
above-designated to act as chairman or secretary of the meeting, respectively,
shall be present, a chairman or a secretary of the meeting, as the case may be,
shall be chosen by a majority of the votes cast at such meeting by the holders
of shares of capital stock present in person or represented by proxy and
entitled to vote at the meeting.
3.12. ORDER OF BUSINESS. The order of business at all meetings of
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stockholders shall be as determined by the chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a majority of the votes cast at such meeting by the holders of
shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
3.13. WRITTEN CONSENT OF STOCKHOLDERS WITHOUT A MEETING. Unless otherwise
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provided in the Certificate of Incorporation, any action required by the General
Corporation Law to be taken at any annual or special meeting of stockholders of
the Corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting,
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without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE IV
DIRECTORS
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4.1. GENERAL POWERS. Except as otherwise provided in the Certificate of
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Incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the By-
Laws or applicable laws, as it may deem proper for the conduct of its meetings
and the management of the Corporation. In addition to the powers expressly
conferred by the By-Laws, the Board may exercise all powers and perform all acts
which are not required by the By-Laws or the Certificate of Incorporation or by
law to be exercised and performed by the stockholders.
4.2. NUMBER; QUALIFICATION; TERM OF OFFICE. Until changed by action of the
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Board, and subject to the limitations set forth in the Certificate of
Incorporation, the number of Directors shall be not less than three (3) or more
than nine (9), the number to be fixed from time to time by the vote of a
majority of the entire Board. Each Director shall hold office until his
successor is elected and qualified or until his earlier death, resignation or
removal.
4.3. ELECTION. Directors shall, except as otherwise required by law or by
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the Certificate of Incorporation, be elected by a plurality of the votes cast at
a meeting of stockholders by the holders of shares entitled to vote in the
election.
4.4. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Unless otherwise provided
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in the Certificate of Incorporation, newly created directorships resulting from
an increase in the number of Directors and vacancies occurring in the Board for
any reason, including the removal of Directors without cause, may be filled by
vote of a majority of the Directors then in office, although less than a quorum,
or by a sole remaining Director, at any meeting of the Board or may be elected
by a plurality of the votes cast by the holders of shares of capital stock
entitled to vote in the election at a special meeting of stockholders called for
that purpose. A Director elected to fill a vacancy shall be elected to hold
office until his successor is elected and qualified, or until his earlier death,
resignation or removal.
4.5. RESIGNATIONS. Any Director may resign at any time by written notice
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to the Corporation. Such resignation shall take effect at the time therein
specified, and, unless otherwise specified, the acceptance of such resignation
shall not be necessary to make it effective.
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4.6. REMOVAL OF DIRECTORS. Except as otherwise provided by law, any or
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Directors may be removed with or without cause, by vote of the holders of a
majority of the outstanding stock of the Corporation entitled to vote generally
in the election of directors (considered for this purpose as one class) cast at
a meeting of the stockholders called for that purpose.
4.7. COMPENSATION. Each Director, in consideration of his service as such,
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shall be entitled to receive from the Corporation such amount per annum or such
fees for attendance at Directors' meetings, or both, as the Board may from time
to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each Director
who shall serve as a member of any committee of directors, in consideration of
his serving as such, shall be entitled to such additional amount per annum or
such fees for attendance at committee meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in the performance of his duties. Nothing in this Section
contained shall preclude any Director from serving the Corporation or its
subsidiaries in any other capacity and receiving proper compensation therefor.
4.8. PLACE AND TIME OF MEETINGS OF THE BOARD. Meetings of the Board,
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regular or special, may be held at any place within or without the State of
Delaware. The times and places for holding meetings of the Board may be fixed
from time to time by resolution of the Board or (unless contrary to resolution
of the Board) in the notice of the meeting.
4.9. ANNUAL MEETINGS. On the day when and at the place where the annual
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meeting of stockholders for the election of Directors is held, and as soon as
practicable thereafter, the Board may hold its annual meeting, without notice of
such meeting, for the purpose of organization, the election of officers and the
transaction of other business. The annual meeting of the Board may be held at
any other time and place specified in a notice given as provided in Section 4.11
of the By-Laws for special meetings of the Board or in a waiver of notice
thereof.
4.10. REGULAR MEETINGS. Regular meetings of the Board may be held at
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such times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be held
without notice. If any day fixed for a regular meeting of the Board shall be a
Saturday or Sunday or a legal holiday at the place where such meetings is to be
held, then such meeting shall be held at the same hour at the same place on the
first business day thereafter which is not a Saturday, Sunday or legal holiday.
4.11. SPECIAL MEETINGS. Special meetings of the Board shall be held
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whenever called by the President or the Secretary or by any two or more
Directors. Notice of each special meeting of the Board shall be given to each
Director by the Secretary, or in the case of the death, absence, incapacity or
refusal by the Secretary, by the officer or one of the Directors calling the
Meeting. Notice shall be given to each Director in person or by telephone sent
to his business or last known home address at least forty-eight (48) hours in
advance of the meeting. Every such notice shall state the time and place of the
meeting but need not state the purposes of the meeting, except to the extent
required by law. Notice need not be given to any Director if a written waiver
of notice executed by him before or after the meeting, is filed with the records
of the meeting, or to any Director who
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attends the meeting without protesting prior thereto or at its commencement the
lack of notice to him. A notice or waiver of notice of a Directors' meeting need
not specify the purposes of the meeting.
4.12. ADJOURNED MEETINGS. A majority of the Directors present at any
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meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Notice of any
adjourned meeting of the Board need not be given to any Director whether or not
present at the time of the adjournment. Any business may be transacted at any
adjourned meeting that might have been transacted at the meeting as originally
called.
4.13. WAIVER OF NOTICE. Whenever notice is required to be given to any
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Director or member of a committee of Directors under any provision of the
General Corporation Law or of the Certificate of Incorporation or By-Laws, a
written waiver thereof, 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 the 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
Directors, or members of a committee of Directors, need be specified in any
written waiver of notice.
4.14. ORGANIZATION. At each meeting of the Board, the President of the
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Corporation, or in the absence of the President, a chairman chosen by the
majority of the Directors present, shall preside. The Secretary shall act as
secretary at each meeting of the Board. In case the Secretary shall be absent
from any meeting of the Board, an Assistant Secretary shall perform the duties
of secretary at such meeting; and in the absence from any such meeting of the
Secretary and Assistant Secretaries, the person presiding at the meeting may
appoint any person to act as secretary of the meeting.
4.15. QUORUM OF DIRECTORS. Two-thirds of the Directors then in office
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shall constitute a quorum for the transaction of business or of any specified
item of business at any meeting of the Board.
4.16. ACTION BY THE BOARD. All corporate action taken by the Board or
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any committee thereof shall be taken at a meeting of the Board, or of such
committee, as the case may be, except that any action required or permitted to
be taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee. Unless otherwise prohibited
by law or the Certificate of Incorporation, members of the Board, or of any
committee designated by the Board, may participate in a meeting of the Board of
such committee by means of a conference telephone or similar communications
equipment by which means all persons participating in the meeting can hear each
other; and participation in a meeting pursuant to this Section 4.16 shall
constitute presence in person at such meeting. Except as otherwise provided by
these By-Laws or the Certificate of Incorporation or by
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law, the vote of a majority of the Directors present (including those who
participate by means of conference telephone or similar communications
equipment) at the time of the vote, if a quorum is present at such time, shall
be the act of the Board, except that a unanimous vote of the Board shall be
required for the calling of a special meeting of shareholders.
ARTICLE V
COMMITTEES OF THE BOARD
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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 of a Board
appointed alternate, 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 to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority of the Board in reference to amending the Certificate of
Incorporation, adapting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
By-Laws of the Corporation; and, unless the resolution designating it expressly
so provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
ARTICLE VI
OFFICERS
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6.1. OFFICERS. The Board shall elect a Chairman of the Board, a President,
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a Secretary and a Treasurer, and may elect or appoint one or more Vice
Presidents and such other officers as it may determine. The Board may designate
one or more Vice Presidents as Executive Vice Presidents, and may use
descriptive words or phrases to designate the standing, seniority or area of
special competence of the Vice Presidents elected or appointed by it. Each
officer shall hold his office until his successor is elected and qualified or
until his earlier death, resignation or removal in the manner provided in
Section 6.2 of the By-Laws. Any two or more offices may be held by the same
person. The Board may require any officer to give a bond or other security for
the faithful performance of his duties, in such amount and with such sureties as
the Board may determine. All officers as between themselves and the Corporation
shall have such authority and perform such duties in the management of the
Corporation as may be provided for in the By-Laws or as the Board may from time
to time determine.
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6.2. REMOVAL OF OFFICERS. Any officer elected or appointed by the Board
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may be removed by the Board with or without cause. The removal of an officer
without cause shall be without prejudice to his or her contract rights, if any.
The election or appointment of an officer shall not itself create contract
rights.
6.3. RESIGNATIONS. Any officer may resign at any time by notifying the
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Board or the President or the Secretary in writing. Such resignation shall take
effect at the date of receipt of such notice or at such later time as is therein
specified, and, unless otherwise specified, the acceptance of such resignation
shall not be necessary to make it effective. The resignation of an officer
shall be without prejudice to the contract rights of the Corporation, if any.
6.4. VACANCIES. A vacancy in any office because of death, resignation,
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removal, disqualification or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in the By-Laws for the regular
election or appointment to such office.
6.5. COMPENSATION. Salaries or other compensation of the officers may be
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fixed from time to time by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is also a
Director.
6.6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall, if present,
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preside at all meetings of the shareholders and Directors and shall have such
other powers and duties as may from time to time be assigned to him by the
Board.
6.7. PRESIDENT. The President shall have general supervision over the
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business of the Corporation, subject, however, to the control of the Board and
of any duly authorized committee of Directors. The President shall, if present,
preside at all meetings of the stockholders and at all meetings of the Board.
He may, with the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer, sign certificates for shares of capital stock of the
Corporation. He may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts and other instruments, except in cases where the
signing and execution thereof shall be expressly delegated by the Board or by
the By-Laws to some other officer or agent of the Corporation, or shall be
required by law to be otherwise signed or executed; and, in general, he shall
perform all duties incident to the office of President and such other duties as
may from time to time be assigned to him by the Board.
6.8. VICE PRESIDENTS. At the request of the President or, in his or her
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absence, at the request of the Board, the Vice Presidents shall (in such order
as may be designated by the Board, or in the absence of any such designation, in
order of seniority based on age) perform all of the duties of the president, and
when so acting shall have all the powers of and be subject to all restrictions
upon the President. Any Vice President may also, with the Secretary or the
Treasurer or an Assistant Secretary or an Assistant Treasurer, sign certificates
for shares of capital stock of the Corporation; may sign and execute in the name
of the Corporation deeds, mortgages, bonds, contracts or other instruments
authorized by the Board, except in cases where the signing and execution thereof
shall be expressly delegated by the Board or by the By-Laws to some other
officer or agent of the
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Corporation, or shall be required by law to be otherwise signed or executed; and
shall perform such other duties as from time to time may be assigned to him by
the Board or by the President.
6.9. SECRETARY. The Secretary, if present, shall act as secretary of all
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meetings of the stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he or she
shall see that all notices required to be given by the Corporation are duly
given and served; he or she may, with the President or a Vice President, sign
certificates of shares of capital stock of the Corporation; he or she shall be
custodian of the seal of the Corporation and may seal with the seal of the
Corporation, or a facsimile thereof, all certificates for shares of capital
stock of the Corporation and all documents the execution of which on behalf of
provisions of the By-Laws; he or she shall have charge of the stock ledger and
also of the other books, records and papers of the Corporation relating to its
organization and management as a Corporation, and shall see that the reports,
statements and other documents required by law are properly kept and filed; and
shall, in general, perform all the duties incident to the office of Secretary
and such other duties as from time to time may be assigned to him or her by the
Board or by the President.
6.10. TREASURER. The Treasurer shall have charge and custody of, and
---------
be responsible for, all funds, securities and notes of the Corporation; receive
and give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with these By-Laws; against proper vouchers, cause such funds to be disbursed by
checks or drafts on the authorized depositories of the Corporation signed in
such manner as shall be determined in accordance with any provisions of the By-
Laws, and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books to be kept by him or
under his direction his discretion full and adequate account of all moneys
received or paid by him for the account of the Corporation; have the right to
require, from time to time, reports or statements giving such information as he
may desire with respect to any and all financial transactions of the Corporation
from the officers and agents transacting the same; render to the President or
the Board, whenever the President or the Board, respectively, shall require him
to so do, an account of the financial condition of the Corporation and of all
his transactions as Treasurer; exhibit at all reasonable times his books of
account and other records to any of the Directors upon application at the office
of the Corporation where such books and records are kept; and in general perform
all the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Board or by the President; and he may
sign with the President or a Vice President certificates for shares of capital
stock of the Corporation.
6.11. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. Assistant
----------------------------------------------
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President. Assistant Secretaries and Assistant Treasurers may,
with the President or a Vice President, sign certificates for shares of capital
stock of the Corporation.
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ARTICLE VII
CONTRACTS, CHECKS DRAFTS, BANK ACCOUNTS, ETC.
---------------------------------------------
7.1. EXECUTION OF CONTRACTS. The Board may authorize any officer, employee
----------------------
or agent, in the name and one behalf of the Corporation, to enter into any
contract or execute and satisfy any instrument, and any such authority may be
general or confined to specific instances or otherwise limited.
7.2. LOANS. The President or any other officer, employee or agent
-----
authorized by the By-Laws or by the Board may effect loans and advances at any
time for the Corporation from any bank, trust company or other institution or
from any firm, corporation or individual, and for such loans and advances may
make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, and when authorized to so do may
pledge, hypothecate or transfer any securities or other property of the
Corporation as security for any such loans or advances. Such authority
conferred by the Board may be general or confined to specific instances or
otherwise limited.
7.3. CHECKS, DRAFTS, ETC. All checks, drafts and other orders for the
--------------------
payment of money out of the funds of the Corporation and all notes or other
evidences of indebtedness of the Corporation shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
7.4. DEPOSITS. The funds of the Corporation not otherwise employed shall
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be deposited from time to time to the order of the Corporation in such banks,
trust companies or other depositories as the Board may select or as may be
selected by an officer, employee or agent of the Corporation to whom such power
may from time to time be delegated by the Board.
ARTICLE VIII
STOCK AND DIVIDENDS
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8.1. CERTIFICATES REPRESENTING SHARES. The shares of capital stock of the
--------------------------------
Corporation shall be represented by certificates in such form (consistent with
the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates shall be signed by the President or a
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer, and may be sealed with the seal of the Corporation or
a facsimile thereof. The signatures of the officers upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent or registrar
who has signed or whose facsimile signature has been placed upon any certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may, unless otherwise ordered by the
Board, be issued by the Corporation with the same effect as if such person were
such officer, transfer agent or registrar at the date of issue.
8.2. TRANSFER OF SHARES. Transfers of shares of capital stock of the
------------------
Corporation shall be made only on the books of the Corporation by the holder
thereof or by his duly authorized attorney
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appointed by a power of attorney duly executed and filed with the Secretary or a
transfer agent of the Corporation, and on surrender of the certificate or
certificates representing such shares of capital stock properly endorsed for
transfer and upon payment of all necessary transfer taxes. Every certificate
exchanged, returned or surrendered to the Corporation shall be marked
"Canceled", with the date of cancellation, by the Secretary or an Assistant
Secretary or the transfer agent of the Corporation. A person in whose name
shares of capital stock shall stand on the books of the Corporation shall be
deemed the owner thereof entitled to receive dividends, to vote as such owner
and for all other purposes in respect of the Corporation. No transfer of shares
of capital stock shall be valid as against the Corporation, its stockholders or
creditors for any purpose, except to render the transferee liable for the debts
of the Corporation to the extent provided by law, until such transfer shall have
been entered on the books of the Corporation by an entry showing from and to
whom transferred.
8.3. TRANSFER AND REGISTRY AGENTS. The Corporation may from time to time
----------------------------
maintain one or more transfer offices or agents and registry offices or agents
at such place or places as may be determined from time to time by the Board.
8.4. LOST, DESTROYED, STOLEN AND MUTILATED CERTIFICATES. The holder of any
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shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his legal representative, to make proof satisfactory
to the Board of such loss, destruction, theft or mutilation and to advertise
such fact in such manner as the Board may require, and to give the Corporation
and its transfer agents and registrars, or such of them as the Board may
require, a bond in such form, in such sums and with such surety or sureties as
the Board by direct, to indemnify the Corporation and its transfer agents and
registrars against any claim that may be made against any of them on account of
the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
8.5. REGULATIONS. The Board may make such rules and regulations as it may
-----------
deem expedient, not inconsistent with the By-Laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of certificates
representing shares of its capital stock.
8.6. RESTRICTION ON TRANSFER OF STOCK. A written restriction on the
--------------------------------
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the
holder. Unless noted conspicuously on the certificate representing such capital
stock, a restriction, even though permitted by Section 202 of the General
Corporation Law, shall be ineffective except against a person with actual
knowledge of the restriction. A restriction on the transfer or registration of
transfer of capital stock of the Corporation
13
may be imposed either by the Certificate of Incorporation or by an agreement
among any number of stockholders or among such stockholders and the Corporation.
No restriction so imposed shall be binding with respect to capital stock issued
prior to the adoption of the restriction unless the holders of such capital
stock are parties to the agreement or voted in favor of the restriction.
8.7. DIVIDENDS, SURPLUS, ETC. Subject to the provisions of the Certificate
------------------------
of Incorporation and of law, the Board:
8.7(1) May declare and pay dividends or make other distributions on
the outstanding shares of capital stock in such amounts and at such time or
times as, in its discretion, the condition of the affairs of the
Corporation shall render advisable;
8.7(2) May use and apply, in its discretion, any of the surplus of
the Corporation in purchasing or acquiring any shares of capital stock of
the Corporation, or warrants for the purchase thereof, or any of its bonds,
debentures, notes, scrip or other securities or evidences of indebtedness,
in accordance with law;
8.7(3) May set aside from time to time out of any of the surplus or
net profits of the Corporation such sum or sums as, in its discretion, it
may think proper, as a reserve fund to meet contingencies, or for
equalizing dividends or for the purpose of maintaining or increasing the
property or business of the Corporation, or for any purpose it may think
conducive to the best interests of the Corporation. The Board may modify
or abolish any such reserve in the manner in which it was created.
ARTICLE IX
INDEMNIFICATION
---------------
9.1. INDEMNIFICATION OF OFFICERS AND DIRECTORS. The Corporation shall
-----------------------------------------
indemnify any person who was or is a party or it threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was a Director or an officer of the Corporation, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action,
suit or proceeding to the fullest extent and in the manner set forth in and
permitted by the General Corporation Law, and any other applicable law, as from
time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which such Director or officer may be entitled
apart from the foregoing provisions. The foregoing provisions of this Section
9.1 shall be deemed to be a contract between the Corporation and each Director
and officer who serves in such capacity at any time while this Article 9 and the
relevant provisions of the General Corporation Law and other applicable law, if
any, are in effect, and any repeal or modification thereof shall not affect any
rights or obligations then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore or thereafter
brought or threatened based in whole or in part upon any such state of facts.
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9.2. INDEMNIFICATION OF OTHER PERSONS. The Corporation may 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 by reason of the fact that he is or
was an 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, trustor 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 to the extent and in the manner set forth in and
permitted by the General Corporation Law, and any other applicable law, as from
time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which any such person may be entitled apart
from the foregoing provisions.
9.3. INSURANCE. The Corporation shall have power to purchase and to
---------
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 Section 9.1 and 9.2
of the By-Laws or under Section 145 of the General Corporation Law or any other
provision of law.
ARTICLE X
BOOKS AND RECORDS
-----------------
10.1. BOOKS AND RECORDS. The Corporation shall keep correct and complete
-----------------
books and records of account and shall keep minutes of the proceedings of the
stockholders, the Board and any committee of the Board. The Corporation shall
keep at the office designated in the Certificate of Incorporation or at the
office of the transfer agent or registrar of the Corporation in Delaware, a
record containing the names and addresses of all stockholders, the number and
class of shares held by each and the dates when they respectively became the
owners of record thereof.
10.2. FORM OF RECORDS. Any records maintained by the Corporation in
---------------
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
written form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
10.3. INSPECTION OF BOOKS AND RECORDS. Except as otherwise provided by
-------------------------------
law, the Board shall determine from time to time whether, and, if allowed, when
and under what conditions and regulations, the accounts, books, minutes and
other records of the Corporation, or any of them, shall be open to the
inspection of the stockholders.
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ARTICLE XI
SEAL
----
The Board may adopt a corporate seal which shall be in the form of a
circle and shall bear the full name of the Corporation, the year of its
incorporation and the word "Delaware".
ARTICLE XII
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be determined, and may be
changed, by resolution of the Board.
ARTICLE XIII
VOTING OF SHARES HELD
---------------------
Unless otherwise provided by the resolution of the Board, the
President may, from time to time, appoint one or more attorneys or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as a stockholder in any other
corporation or otherwise, at meetings of the holders of stock or other
securities of such other corporation, or to consent in writing to any action by
any such other manner of casting such votes or giving such consent, and may
execute or cause to be executed on behalf of the Corporation and under its
corporate seal, or otherwise, such written proxies, consents, waivers or other
instruments as he may deem necessary or proper in the circumstances; or the
President may himself attend any meeting of the holders of the stock or other
securities of any such other corporation and thereat vote or exercise any or all
other powers of the Corporation as the holder of such stock or other securities
of such other corporation.
ARTICLE XIV
AMENDMENTS
----------
The By-Laws may be altered, amended, supplemented or repealed, or new
By-Laws may be adopted, by vote of the holders of a majority of the shares
entitled to vote in the election of Directors. The By-Laws may also be altered,
amended, supplemented or repealed by the Board, provided that the vote of a
majority of the entire Board shall be required to change the number of
authorized Directors. Any By-Laws adopted, altered, amended, supplemented or
repealed by the Board may be altered, amended, supplemented or repealed by the
vote of the holders of a majority of the shares entitled to vote thereon.
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