Exhibit 3.4
AMENDED AND RESTATED BY-LAWS
OF
ADVANCED TECHNOLOGY LABORATORIES, INC.
ARTICLE I
Offices
SECTION 1. Registered office
The registered office of the Corporation in the State of Delaware shall be
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of the registered agent in charge thereof is The
Corporation Trust Company.
SECTION 2. Other Offices
The Corporation may also have offices at other places either within or
without the State of Delaware.
ARTICLE II
Meetings of Stockholders
SECTION 1. Annual Meetings
The annual meeting of the stockholders for the election of directors and
for the transaction of such other business as may properly come before the
meeting shall be held at such place, date and hour as shall be designated in the
notice thereof given by or at the direction of the Board of Directors.
SECTION 2. Special Meetings
Except as otherwise required by law and subject to the rights of the
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, special meetings of the stockholders
for any purpose or purposes may be called only by, and shall be held at such
place, date and hour as shall be designated by (i) holders of two-thirds or
more of the voting power of the then-outstanding shares of stock of all classes
and series of the Corporation entitled to vote generally in the election of
Directors ("Voting Stock"), (ii) the Chairman of the Board, (iii) the
President or (iv) a majority of the total number of Directors.
SECTION 3. Notice of Meetings
Except as otherwise expressly required by law, notice of each meeting of
the stockholders shall be given not less than 10 nor more than 60 days before
the date of the meeting to each stockholder entitled to vote at such meeting by
mailing such notice, postage prepaid, directed to the stockholder at his address
as it appears on the records of the Corporation. Every such notice shall state
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. Except as otherwise
expressly required by law, notice of any adjourned meeting of the Stockholders
need not be given. Notice of any meeting of stockholder shall not be required
to be given to any stockholder who shall attend such meeting in person or by
proxy, 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. A written waiver of
notice, signed by the person entitled thereto, whether before or after the time
stated therein, shall be deemed equivalent to the notice required by this
Section 3.
SECTION 4. List of Stockholders
It shall be the duty of the Secretary or other officer of the Corporation
who shall have charge of its stock ledger to prepare and make, at least 10 days
before every meeting of the stockholders, a complete list of the stockholder
entitled to vote thereat, 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 10 days prior to the meeting at the place within
the city where the meeting is to be held. Such 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.
SECTION 5. Quorum
At each meeting of the stockholder, except as otherwise expressly required
by law or by the Certificate of Incorporation, stockholders holding one-third of
the shares of stock of the Corporation issued and outstanding, and entitled to
be voted thereat, shall be present in person or by proxy to constitute a quorum
for the transaction of business. In the absence of a quorum at any such meeting
or any adjournment or adjournments thereof, a majority in voting interest of
those present in person or by proxy and entitled to vote thereat, or in the
absence therefrom of all the stockholders, any officer entitled to preside at,
or to act as Secretary of, such meeting may adjourn such meeting from time to
time until stockholder holding the amount of stock requisite for a quorum shall
be present in person or by proxy. At any such
adjourned meeting at which a quorum may be present any business may be
transacted which might have been transacted at the meeting as originally
called.
SECTION 6. Organization
At each meeting of the stockholders, one of the following shall act as
chairman of the meeting and preside thereat, in the following order of
precedence:
(a) the Chairman of the Board;
(b) the President;
(c) any other officer of the Corporation designated by the Board or the
Executive Committee to act as chairman of such meeting and to preside thereat if
the Chairman of the Board and the President shall be absent from such meeting;
or
(d) a stockholder of record of the Corporation who shall be chosen
chairman of such meeting by a majority in voting interest of the stockholder
present in person or by proxy and entitled to vote thereat. The Secretary, or,
if he shall be presiding over the meeting in accordance with the provisions of
this Section, or, if he shall be absent from such meeting, the person (who shall
be an Assistant Secretary, if an Assistant Secretary shall be present thereat)
whom the chairman of such meeting shall appoint, shall act as secretary of such
meeting and keep the minutes thereof.
SECTION 7. Order of Business
(a) Annual Meetings. At an annual meeting of the stockholders, only such
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business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business must be (i)
specified in the notice of the meeting (or any supplement thereto) given by or
at the direction of the Board of Directors, (ii) otherwise brought before the
meeting by or at the direction of the Board of Directors or (iii) brought
before the meeting by a stockholder in accordance with the procedure set forth
below. Subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation,
for business to be properly brought before an annual meeting by a stockholder,
the stockholder must have given written notice thereof, either by personal
delivery or by certified or registered United States mail, postage prepaid, to
the Secretary of the Corporation, not later than 90 days in advance of the
Originally Scheduled Date (as such term is defined below) of such meeting;
provided, however, that if such annual meeting of stockholders is held on a date
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earlier than the first Tuesday in May, such written notice must
be given within 10 days after the first public disclosure (which may be by a
public filing by the Corporation with the Securities and Exchange Commission)
of the Originally Scheduled Date of the annual meeting. Any such notice shall
set forth as to each matter the stockholder proposes to bring before the
annual meeting (A) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting
and, in the event that such business includes a proposal to amend either the
Certificate of Incorporation or By-Laws of the Corporation, the language of
the proposed amendment, (B) the name and address of the stockholder proposing
such business, (C) a representation that the stockholder is a holder of record
of stock of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to propose such business and (D)
any direct or indirect material interest of the stockholder in such business.
No business shall be conducted at an annual meeting except in accordance with
this paragraph, and the chairman of any annual meeting of stockholders may
refuse to permit any business to be brought before such annual meeting without
compliance with the foregoing procedure. For purposes of these By-Laws, the
"Originally Scheduled Date" of any meeting of stockholders shall be the date
such meeting is scheduled to occur in the notice of such meeting first given
to stockholders regardless of whether such meeting is continued or adjourned
and regardless of whether any subsequent notice is given for such meeting or
the record date of such meeting is changed.
(b) Special Meetings. At a special meeting of the stockholder, only such
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business as is specified in the notice of such special meeting given by or at
the direction of the person or persons calling such meeting in accordance with
Section 2 of this Article II shall come before such meeting.
SECTION 8. Voting
Except as otherwise provided in the Certificate of Incorporation, each
stockholder shall, at each meeting of the stockholders, be entitled to one vote
in person or by proxy for each share of stock of the Corporation held by him and
registered in his name on the books of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 5 of Article
VIII of these By-Laws as the record date for the determination of stockholders
who shall be entitled to receive notice of and to vote at such meeting, or
(b) if no record date shall have been so fixed, then at the close of
business on the day next preceding the day on which notice of the meeting shall
be given.
Shares of its own stock belonging to the Corporation or to another corporation,
if a majority of the shares entitled to vote in the election of
directors of such other corporation is held by the Corporation, shall neither
be entitled to vote nor considered as issued and outstanding for the purposes
of determining whether a quorum exists. Any vote of stock of the Corporation
may be given at any meeting of the stockholders by the stockholders entitled
thereto in person or by proxy appointed by an instrument in writing delivered
to the Secretary or an Assistant Secretary of the Corporation or the secretary
of the meeting. The attendance at any meeting of a stockholder who may
theretofore have given a proxy shall not have the effect of revoking the same
unless he shall in writing so notify the secretary of the meeting prior to the
voting of the proxy. At all meetings of the stockholders all matters, except
as otherwise provided in the Certificate of Incorporation, these By-Laws or by
law, shall be decided by the vote of a majority of the votes cast by
stockholders present in person or by proxy and entitled to vote thereat, a
quorum being present. Except as otherwise expressly required by law, the vote
at any meeting of the stockholders on any question need not be by ballot,
unless so directed by the chairman of the meeting. On a vote by ballot each
ballot shall be signed by the stockholder voting, or by his proxy, if there be
such proxy, and shall state the number of shares voted.
ARTICLE III
Board of Directors
SECTION 1. General Powers
The business and affairs of the Corporation shall be managed by the Board.
SECTION 2. Number, Term of Office and Election
Subject to the rights of the holders of any class or series of stock having
a preference over the Common Stock of the Corporation as to dividends or upon
liquidation, the number of directors which shall constitute the whole Board
shall be nine but by vote of a majority of the entire Board the number thereof
may be increased without limit, or decreased to not less than three, by
amendment of this section 2.
Each of the directors of the Corporation shall hold office until the annual
meeting next after his election and until his successor shall be elected and
shall qualify or until his earlier death or resignation or removal in the manner
hereinafter provided.
Directors need not be stockholders of the Corporation.
Except as otherwise expressly provided in the Certificate of Incorporation,
at each meeting of the stockholders for the election of directors at which a
quorum is present, the persons receiving the greatest number of votes, up to the
number of directors to be elected, shall be the directors.
SECTION 3. Notification of Nominations
Subject to the rights of the holders of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation,
nominations for the election of directors may be made by the Board of Directors
or by any stockholder entitled to vote for the election of directors. Any
stockholder entitled to vote for the election of directors at a meeting may
nominate persons for election as directors only if written notice of such
stockholder's intent to make such nomination is given, either by personal
delivery or by registered or certified United States mail, postage prepaid, to
the Secretary of the Corporation not later than (i) with respect to an election
to be held at an annual meeting of stockholders, 90 days in advance of the
Originally Scheduled Date (as such term is defined in Section 7 of Article II of
these By-Laws) of such meeting (provided that if such annual meeting of
stockholder is held on a date earlier than the first Tuesday in May, such
written notice must be given within 10 days after the first public disclosure
(which may be by a public filing by the Corporation with the Securities and
Exchange Commission) of the Originally Scheduled Date of the annual meeting),
and (ii) with respect to an election to be held at a special meeting of
stockholder for the election of directors, the close of business on the seventh
day following the date on which notice of such meeting is first given to
stockholders. Each such notice shall set forth: (a) the name and address of
the stockholder who intends to make the nomination and of the person or persons
to be nominated, (b) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice, (c) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder, (d) such other information
regarding each nominee proposed by such stockholder as would have been required
to be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had each nominee been nominated, or intended
to be nominated, by the Board of Directors, and (e) the consent of each nominee
to serve as a director of the Corporation if so elected. The chairman of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
SECTION 4. Resignation, Removal and Vacancies
(a) Resignation. Any director may resign at any time by giving written
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notice of his resignation to the Chairman of the Board, the President or the
Secretary of 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, then it shall take effect when accepted by action of the
Board. Except as aforesaid, the acceptance of such resignation shall not be
necessary to make it effective.
(b) Vacancies. Subject to the rights of the holders of any class or
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series of stock having a preference over the Common Stock of the Corporation as
to dividends or upon liquidation, in case of any vacancy on the Board or in case
of any newly created directorship, a director to fill the vacancy or the newly
created directorship for the unexpired portion of the term being filed may be
elected by a majority of the directors of the Corporation then in office though
less than a quorum or by a sole remaining director.
SECTION 5. Meetings
(a) Annual Meetings. As soon as practicable after each annual election of
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directors, the Board shall meet for the purpose of organization and the
transaction of other business.
(b) Regular Meetings. Regular meetings of the Board shall be held at such
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times and places as the Board shall from time to time determine. Notices of
regular meetings need not be given.
(C) Special Meetings. Special meetings of the Board shall be held
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whenever called by the Chairman of the Board, the President or three directors.
The Secretary shall give notice to each director of each such special meeting,
including the time and place of such meeting. Notice of each such meeting shall
be mailed to each director, addressed to him at his residence or usual place of
business, at least five days or, in the case of overnight mail, two days before
the day on which such meeting is to be held, or shall be sent to him by
telegraph, cable, wireless or other form of recorded communication or be
delivered personally or by telephone not later than the day before the day on
which such meeting is to be held. Notice of any special meeting shall not be
required to be given to any director who shall attend such meeting. A written
waiver of notice, signed by the person entitled thereto, whether before or after
the time stated therein, shall be deemed equivalent to notice. Any and all
business may be transacted at a special meeting which may be transacted at a
regular meeting of the Board.
(d) Place of Meeting. The Board may hold its meetings at such place or
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places within or without the State of Delaware as the Board may from time to
time by resolution determine or, in the absence of such determination, as
shall be designated in the respective notices or waivers of notice thereof as
directed by the person or persons calling such meeting.
(e) Quorum and Manner of Acting. A majority of the directors then in
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office shall be present in person or by means of conference telephone or similar
communications equipment as permitted by the Delaware Corporation Law at any
meeting of the Board of Directors in order to constitute a quorum for the
transaction of business at such meeting provided that such majority shall be no
less than one-third of the total number of directors. The affirmative vote of a
majority of those directors present at any such meeting at which a quorum is
present shall be necessary for the passage of any resolution or act of the
Board, except as otherwise expressly required by law, the Certificate of
Incorporation or these By-Laws and except that the Board may pass any resolution
or take any action by unanimous written consent as permitted by the Delaware
Corporation Law. In the absence of a quorum for any such meeting, a majority of
the directors present thereat may adjourn such meeting from time to time until a
quorum shall be present thereat. Notice of any adjourned meeting need not be
given.
(f) Organization. At each meeting of the Board, one of the following
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shall act as chairman of the meeting and preside thereat, in the following order
of precedence:
(i) the Chairman of the Board;
(ii) the President; or
(iii) any director chosen by a majority of the directors present
thereat.
The Secretary or, in the case of his absence, any person (who shall be an
Assistant Secretary, if an Assistant Secretary shall be present thereat) whom
the chairman of the meeting shall appoint, shall act as Secretary of
such meeting and keep the minutes thereof.
SECTION 6. Compensation
Each director, in consideration of his serving as such, shall be entitled
to receive from the Corporation such amount per annum or such fees for
attendance at meetings of the Board or of any committee, or both, as the Board
shall from time to time determine. The Board may likewise provide that the
Corporation shall reimburse each director or member of a committee for any
expenses incurred by him on account of his attendance at any such meeting.
Nothing contained in this Section shall be construed to preclude any director
from serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
Committees
SECTION 1. Executive Committee
(a) Designation and Membership. The Board may, by resolution passed by a
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majority of the whole Board, designate an Executive Committee consisting of the
Chairman of the Board, the President, a Chairman of the Executive Committee (who
may be the Chairman of the Board or President) and such additional number of
directors as the Board shall appoint. Vacancies may be filled by the Board at
any time and any member of the Executive Committee shall be subject to removal,
with or without cause, at any time by the Board.
(b) Factions and Powers. The Executive Committee, subject to any
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limitations prescribed by the Board, shall possess and may exercise, during the
intervals between meetings of the Board, the powers of the Board in the
management of the business and affairs of the Corporation, provided that neither
the Executive Committee nor any other committee may exercise the power of the
Board to act upon matters requiring a vote thereof greater than a majority of
directors present at a meeting at which a quorum is in attendance. At each
meeting of the Board, the Executive Committee shall make a report of all action
taken by it since its last report to the Board.
(c) Meetings. The Executive Committee shall meet as often as may be
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deemed necessary and expedient at such times and places as shall be determined
by the Executive Committee or the Board of Directors. The Secretary shall give
notice to each member of the Executive Committee of each meeting, including the
time and place of such meeting. Notice of each such meeting shall be mailed to
each member of the Executive Committee, addressed to him at his residence or
usual place of business, at least five days or, in the case of overnight mail,
two days before the day on which such meeting is to be held, or shall be sent to
him by telegraph, cable, wireless or other form of recorded communication or be
delivered personally or by telephone not later than the day before the day on
which such meeting is to be held. Notice of any meeting of the Executive
Committee shall not be required to be given to any member of the Executive
Committee who shall attend such meeting. A written waiver of notice, signed by
the person entitled thereto, whether before or after the time stated therein,
shall be deemed equivalent to the notice required by this paragraph (c).
SECTION 2. Quorum and Manner of Acting
A majority of the Executive Committee present in person or by means of
conference telephone or similar communications equipment as permitted by the
Delaware Corporation Law shall constitute a quorum, and the vote of a majority
of members of the Executive Committee present at any such meeting at which a
quorum is present shall be necessary for the passage of any resolution or act of
the Executive Committee except that the Executive Committee may pass any
resolution or take any action by unanimous written consent as permitted by the
Delaware Corporation Law. The Chairman of the Executive Committee shall preside
at meetings of the Executive Committee and, in his absence, the Executive
Committee may appoint any other member of the Executive Committee to preside.
SECTION 3. Other Committees
The Board may, by resolution passed by a majority of the whole Board,
designate other committees, each committee to consist of two or more directors
and to have such duties and functions as shall be provided in such resolution.
ARTICLE V
Officers
SECTION 1. Election and Appointment and Term of office
(a) Officers. The officers of the Corporation shall be a Chairman of the
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Board, a President, a Chairman of the Executive Committee, such number of Vice
Presidents (including any Executive and/or Senior Vice Presidents) as the Board
may determine from time to time, a Treasurer and a Secretary. Each such officer
shall be elected by the Board at its annual meeting and shall hold office until
the next annual meeting of the Board and until his successor is elected and
qualified or until his earlier death or resignation or removal in the manner
hereinafter provided.
(b) Additional Officers. The Board may elect or appoint such other
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officers (including one or more Assistant Treasurers and one or more Assistant
Secretaries) as it deems necessary, who shall have such authority and shall
perform such duties as the Board may prescribe. If additional officers are
elected or appointed during the year, each of them shall hold office until the
next annual meeting of the Board at which officers are regularly elected or
appointed and until his successor is elected or appointed and qualified or until
his earlier death or resignation or removal in the manner hereinafter provided.
SECTION 2. Resignation, Removal and Vacancies
Any officer may resign at anytime by giving written notice to the Chairman
of the Board, the President or the Secretary of the Corporation, and such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, then it shall take
effect when accepted by action of the Board. Except as aforesaid, the
acceptance of such resignation shall not be necessary to make it effective. All
officers and agents elected or appointed by the Board shall be subject to
removal at any time by the Board with or without cause. A vacancy in any office
may be filled for the unexpired portion of the term in the same manner as
provided for election or appointment to such office.
SECTION 3. Duties and Functions
(a) Chairman of the Board. The Chairman of the Board shall be the chief
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executive officer of the Corporation and shall have general charge of the
business and affairs of the Corporation and shall have the direction of all
other officers, agents and employees. He shall preside at all meetings of the
Board of Directors and of the stockholders at which he is present. The Chairman
may delegate such duties to the other officers of the Corporation as he deems
appropriate.
(b) President. The President shall be the chief operating officer of the
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Corporation and shall report to the Chairman of the Board. He shall preside at
meetings of the Board of Directors and of the stockholders at which he is
present in the absence of the Chairman of the Board.
(c) Chairman of the Executive Committee. The Chairman of the Executive
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Committee shall preside at all meetings of the Executive Committee at which he
is present.
(d) Vice Presidents. Each Vice President shall have such powers and
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duties as shall be prescribed by the Chairman of the Board or the Board.
(e) Treasurer. The Treasurer shall have charge and custody of and be
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responsible for all funds and securities of the Corporation.
(f) Secretary. The Secretary shall keep the records of all meetings of
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the stockholders and of the Board and the Executive Committee. He shall affix
the seal of the Corporation to all deeds, contracts, bonds or other instruments
requiring the corporate seal when the same shall have been signed on behalf of
the Corporation by a duly authorized officer. The Secretary shall be the
custodian of all contracts, deeds, documents and all other indicia of title to
properties owned by the Corporation and of its other corporate records (except
accounting records).
ARTICLE VI
Contracts, Deposits, Proxies, Etc.
SECTION 1. Execution of Documents
The Board shall designate the officers, employees and agents of the
Corporation who shall have power to execute and deliver deeds, contracts,
mortgages, bonds, debentures, checks, drafts and other orders for the payment of
money and other documents for and in the name of the Corporation and may
authorize such officers, employees and agents to delegate such power (including
authority to redelegate) by written instrument to other officers, employees or
agents of the Corporation.
SECTION 2. Deposits
All funds of the Corporation not otherwise employed shall be deposited from
time to time to the credit of the Corporation or otherwise as the Board or the
President or any other officer of the Corporation to whom power in that respect
shall have been delegated by the Board shall select.
SECTION 3. Proxies in Respect of Stock or Other Securities of Other
Corporations
The Board shall designate the officer of the Corporation who shall have
authority to from time to time appoint an agent or agents of the Corporation to
exercise in the name and on behalf of the Corporation the powers and rights
which the Corporation may have as the holder of stock or other secrets in any
other corporation and to vote or consent in respect of such stock or securities.
Such designated officer may instruct the person or persons so appointed as to
the manner of exercising such powers and rights and such designated officers may
execute or cause to be executed in the name and on behalf of the Corporation and
under its corporate seal, or otherwise, such written proxies, powers of attorney
or other instruments as they may deem necessary or proper in order that the
Corporation may exercise such powers and rights.
ARTICLE VII
Books and Records
The books and records of the Corporation may be kept at such places within
or without the State of Delaware as the Board may from time to time determine.
ARTICLE VIII
Shares and Their Transfer; Fixing Record Date
SECTION 1. Certificates for Stock
Every owner of stock of the Corporation shall be entitled to have a
certificate certifying the number of shares owned by him in the Corporation and
designating the class of stock to which such shares belong, which shall
otherwise be in such form as the Board shall prescribe. Each such certificate
shall be signed by, or in the name of the Corporation by, the Chairman of the
Board, the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Corporation. In
case any officer who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer before such certificate
is issued, it may nevertheless be issued by the corporation with the same effect
as if he were such officer at the date of issue.
SECTION 2. Record
A record shall be kept of the name of the person, firm or corporation
owning the stock represented by each certificate for stock of the Corporation
issued, the number of shares represented by each Such certificate, and the date
thereof, and, in the case of cancellation, the date of cancellation. Except as
otherwise expressly required by applicable law, the person in whose name shares
of stock stand on the books of the Corporation shall be deemed the owner thereof
for all purposes as regards the Corporation.
SECTION 3. Transfer of Stock
Transfers of shares of the stock of the Corporation shall be made only on
the books of the Corporation by the registered holder thereof, or by his
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary of the Corporation, and on the surrender of the certificate or
certificates for such shares properly endorsed.
SECTION 4. Lost, Stolen, Destroyed or Mutilated Certificates
The holder of any stock of the Corporation shall immediately notify the
Corporation of any loss, theft or mutilation of the certificate therefor. The
Corporation may issue a new certificate for stock in the place of any
certificate theretofore issued by it and alleged to have been lost, stolen,
destroyed or mutilated, and the Board may, in its discretion, require the owner
of the lost, stolen, mutilated or destroyed certificate or his legal
representatives to give the Corporation a bond in such sum, limited or
unlimited, in such form and with such surety or sureties as the Board shall in
its discretion determine, to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss, theft, mutilation or destruction of any such
certificate or the issuance of any such new certificate.
SECTION 5. Fixing Date for Determination of Stockholders of Record
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 may fix, in advance, a record date, which shall not be more than 60
nor less than 10 days before the date of such meeting, nor more than 60 days
prior to any other action.
ARTICLE IX
Seal
The Board shall provide a corporate seal, which shall be in the form of a
circle and shall bear the full name of the Corporation and the words and figures
"Corporate Seal 1983 Delaware."
ARTICLE X
Fiscal Year
The fiscal year of the Corporation shall end on the 31st of December in
each year.
ARTICLE XI
Indemnification
SECTION 1. Right to Indemnification
The Corporation shall to the fullest extent permitted by applicable law as
then in effect indemnify any person (the "Indemnitee") who was or is involved in
any manner (including, without limitation, as a party or a witness) or is
threatened to be made so involved in any threatened, pending or completed
investigation, claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative (including without limitation, any action, suit
or proceeding by or in the right of the Corporation to procure a judgment in its
favor) (a "Proceeding") by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or wall serving at
the request of the Corporation as a director, officer or employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
(including, without limitation, any employee benefit plan) against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
proceeding. Such indemnification shall be a contract right and shall include
the right to receive payment in advance of any expenses incurred by the
Indemnitee in connection with such proceeding, consistent with the provisions
of applicable law as then in effect.
SECTION 2. Insurance, Contracts and Funding
The Corporation may purchase and maintain insurance to protect itself and
any Indemnitee against any expenses, judgments, fines and amounts paid in
settlement as specified in Section I of this Article XI or incurred by any
Indemnitee in connection with any proceeding referred to in Section 1 of this
Article XI, to the fullest extent permitted by applicable law as then in effect.
The Corporation may enter into contracts with any director, officer, employee or
agent of the Corporation in furtherance of the provisions of this Article XI and
may create a trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to ensure the payment of
such amounts as may be necessary to effect indemnification as provided in this
Article XI.
SECTION 3. Indemnification; Not Exclusive Right
The right of indemnification provided in this Article XI shall not be
exclusive of any other rights to which those seeking indemnification may
otherwise be entitled, and the provisions of this Article XI shall inure to the
benefit of the heirs and legal representatives of any person entitled to
indemnity under this Article XI and shall be applicable to Proceedings commenced
or continuing after the adoption of this Article XI, whether arising from acts
or omissions occurring before or after such adoption.
SECTION 4. Advancement of Expenses; Procedures; Presumptions and
Effect of Certain Proceedings; Remedies
In furtherance, but not in limitation of the foregoing provisions, the
following procedures, presumptions and remedies shall apply with respect to
advancement of expenses and the right to indemnification under this Article XI:
(a) Advancement of Expenses. All reasonable expenses incurred by or on
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behalf of the Indemnitee in connection with any Proceeding shall be advanced to
the Indemnitee by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the indemnitee
requesting such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the expenses incurred by the Indemnitee and, if required
by law at the time of such advance, shall include or be accompanied by an
undertaking by or on behalf of the Indemnitee to repay the amounts advanced if
it should ultimately be determined that the Indemnitee is not entitled to be
indemnified against such expenses pursuant to this Article XI.
(b) Procedure for Determination of Entitlement to Indemnification.
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(i) To obtain indemnification under this Article XI, an Indemnitee
shall submit to the Secretary of the Corporation a written request,
including such documentation and information as is reasonably
available to the Indemnitee and reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to
indemnification (the "Supporting Documentation"). The determination
of the Indemnity's entitlement to indemnification shall be made not
later than 60 days after receipt by the Corporation of the written
request for indemnification together with the Supporting
Documentation. The Secretary of the Corporation shall, promptly upon
receipt of such a request for indemnification, advise the Board of
Directors in writing that the Indemnitee has requested
indemnification.
(ii) The Indemnity's entitlement to indemnification under this
Article XI shall be determined in one of the following ways: (A) by
a majority vote of the Disinterested Directors (as hereinafter
defined), if they constitute a quorum of the Board of Directors; (B)
by a written opinion of Independent Counsel (as hereinafter defined)
if (x) a Change of Control (as hereinafter defined) shall have
occurred and the Indemnitee so requests or (y) a quorum of the Board
of Directors consisting of Disinterested Directors is not obtainable
or, even if obtainable, a majority of such Disinterested Directors
so directs; (C) by the stockholders of the Corporation (but only if
a majority of the Disinterested Directors, if they constitute a
quorum of the Board of Directors, presents the issue of entitlement
to indemnification to the stockholders for their determination); or
(D) as provided in Section 4(c).
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 4(b)(ii), a majority of the Disinterested Directors shall
select the Independent Counsel, but only an Independent Counsel to
which the Indemnitee does not reasonably object; provided, however,
that if a Change of Control shall have
occurred, the Indemnitee shall select such Independent Counsel, but
only an Independent Counsel to which the Board of Directors does not
reasonably object.
(c) Presumptions and Effect of Certain Proceedings. Except as otherwise
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expressly provided in this Article XI, if a Change of Control shall have
occurred, the Indemnitee shall be presumed to be entitled to indemnification
under this Article XI upon submission of a request for indemnification together
with the Supporting Documentation in accordance with Section 4(b)(i), and
thereafter the Corporation shall have the burden of proof to overcome that
presumption in reaching a contrary determination. In any event, if the person
or persons empowered under Section 4(b) to determine entitlement to
indemnification shall not have been appointed or shall not have made a
determination within 60 days after receipt by the Corporation of the request
therefor, together with the Supporting Documentation, the Indemnitee shall be
deemed to be entitled to indemnification and the Indemnitee shall be entitled to
such indemnification unless (A) the Indemnitee misrepresented or failed to
disclose a material fact in making the request for indemnification or in the
Supporting Documentation or (B) such indemnification is prohibited by law. The
termination of any Proceeding described in Section 1, or of any claim, issue or
matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, adversely affect the
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right of the Indemnitee to indemnification or create a presumption that the
Indemnitee 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 or,
with respect to any criminal Proceeding, that the Indemnitee had reasonable
cause to believe that his conduct was unlawful.
(d) Remedies of Indemnitee.
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(i) In the event that a determination is made pursuant to
Section 4(b) that the Indemnitee is not entitled to indemnification
under this Article XI, (A) the Indemnitee shall be entitled to seek
an adjudication of his entitlement to such indemnification either,
at the Indemnity's sole option, in (x) an appropriate court of the
State of Delaware or any other court of competent jurisdiction or
(y) an arbitration to be conducted by a single arbitrator pursuant
to the rules of the American Arbitration Association; (B) any such
judicial proceeding or arbitration shall be de novo and the
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Indemnitee shall not be prejudiced by reason of such adverse
determination; and (C) if a Change of Control shall have occurred,
in any such judicial proceeding or arbitration, the Corporation
shall have the burden of proving that the Indemnitee is not entitled
to indemnification under this Article XI.
(ii) If a determination shall have been made or deemed to have been
made, pursuant to Section 4(b) or 4(c), that the Indemnitee is
entitled to indemnification, the Corporation shall be obligated to
pay the amounts constituting such indemnification within five days
after such determination has been made or deemed to have been made
and shall be conclusively bound by such determination unless (A) the
Indemnitee misrepresented or failed to disclose a material fact in
making the request for indemnification or in the Supporting
Documentation or (B) such indemnification is prohibited by law. In
the event that (C) advancement of expenses is not timely made
pursuant to Section 4(a) or (D) payment of indemnification is not
made within five days after a determination of entitlement to
indemnification has been made or deemed to have been made pursuant
to Section 4(b) or 4(c), the Indemnitee shall be entitled to seek
judicial enforcement of the Corporation's obligation to pay to the
Indemnitee such advancement of expenses or indemnification.
Notwithstanding the foregoing, the Corporation may bring an action,
in an appropriate court in the State of Delaware or any other court
of competent jurisdiction, contesting the right of the Indemnitee to
receive indemnification hereunder due to the occurrence of an event
described in subclause (A) or (B) of this clause (ii) (a
"Disqualifying Event"); provided, however, that in any such action
the Corporation shall have the burden of proving the occurrence of
such Disqualifying Event.
(iii) The Corporation shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this
Section 4(d) that the procedures and presumptions of this Article XI
are not valid, binding and enforceable and shall stipulate in any
such court or before any such arbitrator that the Corporation is
bound by all the provisions of this Article XI.
(iv) In the event that the Indemnitee, pursuant to this Section
4(d), seeks a judicial adjudication of or an award in arbitration to
enforce his rights under, or to recover damages for breach of, this
Article XI, the Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against,
any expenses actually and reasonably incurred by him if the
Indemnitee prevails in such judicial adjudication or arbitration. If
it shall be determined in such judicial adjudication or arbitration
that the Indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the expenses
incurred by the Indemnitee in
connection with such judicial adjudication or arbitration shall be
prorated accordingly.
(e) Definitions. For purposes of this Section 4:
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(i) "Change in Control" means a change in control of the
Corporation of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934 (the "Act"), whether or not
the Corporation is then subject to such reporting requirement;
provided that, without limitation, such a change in control shall "be
deemed to have occurred if (A) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Corporation representing 20% or more
of the combined voting power of the Corporation's then outstanding
securities without the prior approval of at least two-thirds of the
members of the Board of Directors in office immediately prior to such
acquisition; (B) the Corporation is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board of Directors
in office immediately prior to such transaction or event constitute
less than a majority of the Board of Directors thereafter; or (C)
during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors (including
for this purpose any new director whose election or nomination for
election by the Corporation's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who were
directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors.
(ii) "Disinterested Director" means a director of the Corporation
who is not or was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a member of a law
firm that neither presently is, nor in the past five years has been,
retained to represent: (i) the Corporation or the Indemnitee in any
matter material to either such party or (ii) any other party to the
Proceeding giving rise to a claim for indemnification under this
Article XI. Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person who, under the applicable
standards of professional conduct then prevailing under the law of
the State of Delaware,
would have a conflict of interest in representing either the
Corporation or the Indemnitee in an action to determine the
Indemnitee's rights under this Article XI.
SECTION 5. Severability
If any provision or provisions of this Article XI shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this Article XI
(including, without limitation, all portions of any paragraph of this Article
XI containing any such provision held to be invalid, illegal or unenforceable,
that are not themselves invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby; and (b) to the fullest extent possible,
the provisions of this Article XI (including, without limitation, all portions
of any paragraph of this Article XI containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
ARTICLE XII
Amendments
These By-Laws may be altered or repealed only in accordance with Article
EIGHTH of the Certificate of Incorporation of the Corporation.