EXHIBIT 3.7
AMENDED AND RESTATED
BY-LAWS
OF
TEXAS BIOTECHNOLOGY CORPORATION
(a Delaware corporation)
ARTICLE I
Office
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Section 1.1. Registered Office. The registered office of Texas
Biotechnology Corporation ("Corporation") in the State of Delaware shall be
located at 229 South State Street in the City of Dover, County of Kent, or at
such other place as the Board of Directors may at any time or from time to time
designate.
Section 1.2. Registered Agent. The registered agent of the Corporation in
the State of Delaware at its registered office is The Prentice-Hall Corporation
System, Inc., or such other person, firm or corporation as the Board of
Directors may at any time or from time to time designate.
Section 1.3. Principal Office. The principal office of the Corporation
shall be located at such place as the Board of Directors may at any time or from
time to time designate.
Section 1.4. Other Offices. The Corporation may establish or discontinue,
from time to time, such other offices and places of business within or without
the State of Delaware as may be deemed proper for the conduct of the business of
the Corporation.
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ARTICLE II
Meeting of Stockholders
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Section 2.1. Annual Meeting. An annual meeting of such holders of capital
stock ("Stock") as are entitled to vote thereat ("Annual Meeting of
Stockholders") shall be held for the election of directors and the transaction
of such other business on a date and time to be determined by the Board of
Directors. If the Annual Meeting of Stockholders is not held on the date
designated therefor, the Board of Directors shall cause the meeting to be held
as soon thereafter as convenient.
Section 2.2. Special Meetings. In addition to such special meetings as
are provided for by law or by the Certificate of Incorporation, special meetings
of the stockholders of the Corporation may be called at any time by the Board of
Directors, and by the Secretary upon the written request stating the purposes of
any such meeting of the holders of record collectively of at least fifty-one
(51%) percent of the outstanding shares of Stock of the Corporation. Special
meetings shall be called by means of a notice as provided in Section 2.4 hereof.
Section 2.3. Place of Meetings. All meetings of the stockholders shall be
held at such place within or without the State of Delaware as shall be
designated by the Board of Directors.
Section 2.4. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting and, in case
of a special meeting, the purpose or purposes for which the meeting is called.
The notice of each Annual Meeting of Stockholders shall identify each matter
intended to be acted upon at such meeting. If mailed, the notice shall be
addressed to each stockholder in a postage-prepaid envelope at his address as it
appears on the records of the Corporation unless, prior to the
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time of mailing, the Secretary shall have received from any such stockholder a
written request that notices intended for him be mailed to some other address.
In such case, the notice intended for such stockholder shall be mailed to the
address designated in such request. Notice of each meeting of stockholders shall
be delivered personally or mailed not less than ten (10) nor more than sixty
(60) days before the date fixed for the meeting to each stockholder entitled to
vote at such meeting.
Section 2.5. Waiver of Notice. Whenever notice is required to be given, a
written waiver thereof signed by the person entitled to notice whether before or
after the time stated therein for such meeting shall be deemed equivalent to
notice. Attendance of a person at a meeting of stockholders shall constitute a
waiver of notice of such meeting, except as otherwise provided by law. 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.
Section 2.6. Organization of Meetings. The Chairman of the Board, if any,
shall act as chairman at all meetings of stockholders at which he is present
and, as such chairman, shall call such meetings of stockholders to order and
shall preside thereat. If the Chairman of the Board shall be absent from any
meeting of stockholders, the duties otherwise provided in this Section to be
performed by him at such meeting shall be performed at such meeting by the
President. If both the Chairman of the Board and the President shall be absent,
such duties shall be performed by a Vice President designated by the President
to preside at such meeting. If no such officer is present at such meeting, any
stockholder or the proxy of any stockholder entitled to vote at the meeting may
call the meeting to order and a chairman to preside thereat shall be elected by
a majority of those present and entitled to vote. The Secretary of the
Corporation shall act as secretary at all meetings of the stockholders but, in
his absence, the chairman of the meeting may appoint any person present to act
as secretary of the meeting.
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Section 2.7. Stockholders Entitled to Vote. 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, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten days before the
date of such meeting. If no record date is fixed by the Board of Directors, 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. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 2.8. List of Stockholders Entitled to Vote. The Secretary shall
prepare and make or cause 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 such meeting, arranged in alphabetical order and showing the address of
each such stockholder as it appears on the records of the Corporation and the
number of shares registered in the name of each such 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 specified in the notice of meeting
within the city where the meeting is to be held or, if not so specified, at the
place where the meeting is to be held, and a duplicate list shall be similarly
open to examination at the principal place of business of the Corporation. Such
list shall be produced and kept at the time and place of the meeting during the
whole time thereof and may be inspected by any stockholder who is present.
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Section 2.9. Quorum and Adjournment. Except as otherwise provided by law
and in the Certificate of Incorporation, the holders of a majority of the shares
of Stock entitled to vote at the meeting shall constitute a quorum at each
meeting of the stockholders. Where more than one class or series of Stock is
entitled to vote at such a meeting, a majority of the shares of each such class
or series of Stock entitled to vote at such meeting shall constitute a quorum at
such meeting. In the absence of a quorum, the holders of a majority of all such
shares of Stock present in person or by proxy may adjourn any meeting from time
to time until a quorum shall attend. 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. Notice of an adjourned meeting
need not be given if the time and place thereof are announced at the meeting at
which the adjournment is taken; provided, however, that if the adjournment is
for more than 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.
Section 2.10. Order of Business. The order of business at all meetings of
stockholders shall be as determined by the chairman of the meeting.
Section 2.11. Vote of Stockholders. Except as otherwise permitted by law,
by the Certificate of Incorporation or by Section 2.13 hereof, all action by
stockholders shall be taken at a meeting of the stockholders. Except as
otherwise provided in the Certificate of Incorporation, every stockholder of
record, as determined pursuant to Section 2.7 hereof, who is entitled to vote
shall at every meeting of the stockholders be entitled to one vote for each
share of Stock entitled to participate in such vote held by such stockholder on
the record date. Every stockholder entitled to vote shall have the right to
vote in person or by proxy. Except as otherwise provided by law, no vote on any
question upon which a vote of the stockholders may be taken need be by ballot
unless the chairman of the meeting shall determine that it shall be by ballot or
the holders of a majority of the shares of Stock
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present in person or by proxy and entitled to participate in such vote shall so
demand. In a vote by ballot each ballot shall state the number of shares voted
and the name of the stockholder or proxy voting. Unless otherwise provided by
law or by the Certificate of Incorporation, each director shall be elected by a
plurality of the votes of the shares of Stock present in person or represented
by proxy at the meeting and entitled to vote on the election of directors and
all other questions shall be decided by a vote of the holders of a majority of
the shares of Stock present in person or represented by proxy at the meeting and
entitled to vote on the question.
Section 2.12. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy. A
proxy acting for any stockholder shall be duly appointed by an instrument in
writing subscribed by such stockholder, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and voting in person or
by filing an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date with the Secretary of the Corporation.
Section 2.13. Consent of Stockholders in Lieu of Meeting. Whenever the
vote of stockholders at a meeting thereof is required or permitted to be taken
for or in connection with any corporate action by any provision of the General
Corporation Law of the State of Delaware, the meeting, prior notice of such
meeting and the vote of the stockholders may be dispensed with and such
corporate action may be taken with the written consent of the stockholders of
Stock having not less than the minimum percentage of the total vote required by
statute for the proposed corporate action, unless the Certificate of
Incorporation or the By-Laws require a greater percentage for such action, in
which case
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the consent shall be that of the holders of such greater percentage; provided,
however, that prompt notice is given to all the stockholders who have not
consented of the taking of such corporate action without a meeting by less than
unanimous written consent. Whenever it is intended that action is to be taken by
stockholders without a meeting, a form for expressing consent in writing to such
action shall be sent to all holders of Stock entitled to vote on such action.
Every written consent shall bear the date of signature of each stockholder who
signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty days of the earliest
dated written consent received in accordance with these By-Laws, a written
consent or consents signed by a sufficient number of holders to take such action
are delivered to the Corporation in the manner prescribed in these By-Laws.
Section 2.14. Record Date for Actions by Written Consent. (a) In order
that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to the Secretary,
request the Board of Directors to fix a record date. The Board of Directors
shall promptly, but in all events within ten days after the date on which such a
request is received, adopt a resolution fixing the record date (unless a record
date has previously been fixed by the Board of Directors pursuant to the first
sentence of this Section 2.14(a)). If no record date has been fixed by the
Board of Directors pursuant to the first sentence of this Section 2.14(a) or
otherwise within ten days of the date on which such a request is received, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by applicable law, shall be the first date on which a signed written
consent setting forth the action taken or
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proposed to be taken is delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or to any
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
(b) In the event of the delivery, in the manner provided by Section
2.14(a), to the Corporation of the requisite written consent or consents to take
corporate action and/or any related revocation or revocations, the Corporation
may engage independent inspectors of elections for the purpose of performing
promptly a ministerial review of the validity of the consents and revocations.
For the purpose of permitting the inspectors to perform such review, no action
by written consent without a meeting shall be effective until such date as the
independent inspectors certify to the Corporation that the consents delivered to
the Corporation in accordance with Section 2.14(a) represent at least the
minimum number of votes that would be necessary to take the corporate action.
Nothing contained in this Section 2.14(b) shall in any way be construed to
suggest or imply that the Board of Directors or any stockholder shall not be
entitled to contest the validity of any consent or revocation thereof, whether
before or after such certification by the independent inspectors, or to take any
other action (including, without limitation, the commencement, prosecution, or
defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
Section 2.15. Attendance at Meetings of Stockholders. Any stockholder of
the Corporation not entitled to notice of the meeting or to vote at such meeting
shall nevertheless be entitled to attend any meeting of stockholders of the
Corporation.
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Section 2.16. Notice of Stockholder Nominees. Only persons who are
nominated in accordance with the procedures set forth in this Section 2.16 shall
be eligible for election as directors of the Corporation. Nominations of
persons for election to the Board of Directors may be made at a meeting of the
Corporation's Stockholders (a) by or at the direction of the Board of Directors
or (b) by any Stockholder of the Corporation entitled to vote for the election
of directors at such meeting who complies with the procedures set forth in this
Section 2.16. All nominations by Stockholders shall be made pursuant to timely
notice in proper written form to the Secretary of the Corporation. To be
timely, a Stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 50 days nor
more than 75 days prior to the meeting; provided, however, that if less than 65
days notice or prior public disclosure of the date of the meeting is given or
made to the Stockholders, notice by Stockholder must be received at the
principal executive offices of the Corporation not later than the close of
business on the 15/th /day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. Such Stockholder's
notice to the Secretary shall set forth in writing (a) as to each person whom
such Stockholder proposes to nominate for election or re-election as a director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended, including, without limitation, such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected; and (b) as to such Stockholder, (i) the name and address, as they
appear on the Corporation's books, of such Stockholder and (ii) the class and
number of shares of the Corporation's capital stock that are beneficially owned
by such Stockholder. At the request of the Board of Directors, any person
nominated by the Board of Directors for election as a director shall furnish to
the Secretary of the Corporation that information required to be set forth in a
Stockholders notice of nomination which pertains to the nominee. No person
shall be eligible for election as a director unless nominated in
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accordance with the procedures set forth in these By-Laws of the Company. The
chairman of the Stockholders' meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by these By-Laws, and if he shall so determine, he shall
announce such determination to the meeting and the defective nomination shall be
disregarded.
Section 2.17. Stockholder Proposals. At any special meeting of the
Corporation's Stockholders, only such business brought before the meeting by or
at the direction of the Board of Directors shall be conducted. At any Annual
Meeting of Stockholders, only such business shall be conducted as shall have
been brought before the meeting (a) by or at the direction of the Board of
Directors or (b) by any Stockholder who complies with the procedures set forth
in this Section 2.17. For business to be properly brought before an Annual
Meeting of Stockholders by a Stockholder, the Stockholder must give timely
notice thereof in proper written form to the Secretary of the Corporation. To
be timely, a Stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 50 days nor
more than 75 days prior to the meeting; provided, however, that if less than 65
days notice or prior public disclosure of the date of the meeting is given or
made to the Corporation's Stockholders, notice by the Stockholder must be
received at the principal executive offices of the Corporation not later than
the close of business on the 15th day following the day on which such notice of
the date of the Corporation's Annual Meeting of Stockholders was mailed or such
public disclosure was made. Such Stockholder's notice to the Secretary shall
set forth in writing as to each matter such Stockholder proposes to bring before
the Annual Meeting of Stockholders: (a) a brief description of the business
desired to be brought before the Annual Meeting of Stockholders and the reason
for conducting such business at the Annual Meeting of Stockholders, (b) the name
and address, as they appear on the Corporation's books, of such Stockholder, (c)
the class and number of shares of the Corporation's stock which are beneficially
owned by such Stockholder and (d) any material interest of such Stockholder in
such business. Notwithstanding anything in these
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By-Laws to the contrary, no business shall be conducted at an Annual Meeting of
Stockholders except in accordance with the procedures set forth in this Section
2.17. The chairman of an Annual Meeting of Stockholders shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Section
2.17, and, if he should so determine, he shall so announce such determination to
the meeting and any such business not properly brought before the meeting shall
not be transacted.
ARTICLE III
Board of Directors
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Section 3.1. Election and Term. Except as otherwise provided by law or by
this Article III, directors shall be elected at the Annual Meeting of
Stockholders and shall hold office until the next Annual Meeting of Stockholders
and until their successors are elected and qualify, or until they sooner die,
resign, or are removed. Acceptance of the office of director need not be
expressed in writing.
Section 3.2. Number. The number of directors of the Corporation shall be
fixed from time to time by the vote of a majority of the entire Board then in
office and the number thereof may thereafter by like vote be increased or
decreased to such greater or lesser number.
Section 3.3. General Powers. The business, properties and affairs of the
Corporation shall be managed by or under the direction of the Board of Directors
which, without limiting the generality of the foregoing, shall have the power to
appoint the officers and agents of the Corporation, to fix and alter the
salaries of officers, employees and agents of the Corporation, to grant general
or limited authority (including authority to delegate and sub-delegate) to
officers, employees and agents of the Corporation, to make, execute, affix the
corporate seal to and deliver contracts and other instruments and
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documents including bills, notes, checks or other instruments for the payment of
money, in the name and on behalf of the Corporation without specific authority
in each case and to appoint committees in addition to those provided for in
Articles IV hereof with such powers and duties as the Board of Directors may
determine and as provided by law. The membership of such committees shall
consist of such persons as are designated by the Board of Directors. In
addition, the Board of Directors may exercise all the powers of the Corporation
and do all lawful acts and things which are not reserved to the stockholders by
law, by the Certificate of Incorporation or by the By-Laws.
Section 3.4. Place of Meetings. Meetings of the Board of Directors may be
held at the principal office of the Corporation or at any other place, within or
without the State of Delaware, from time to time as designated by the Board of
Directors. Meetings of the Board of Directors may be held, and one or more
members may attend any meeting of the Board of Directors, by telephonic
conference or similar communications equipment, by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this by-law shall constitute presence in person at such meeting.
Section 3.5. First Meeting of New Board. A newly elected Board of
Directors shall meet without notice as soon as practicable after each Annual
Meeting of Stockholders at the place at which such meeting of stockholders took
place. If a quorum is not present, such organization meeting may be held at any
other time or place which may be specified for special meetings of the Board of
Directors in a notice given in the manner provided in Section 3.7 hereof or in a
waiver of notice thereof.
Section 3.6. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times as may be determined by resolution of the Board of
Directors. No notice shall be required for any regular meeting. Except as
otherwise provided by law, any business may be transacted at any regular meeting
of the Board of Directors.
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Section 3.7. Special Meetings; Notice; and Waiver of Notice. Special
meetings of the Board of Directors shall be called by the Secretary or an
Assistant Secretary at the request of the Chairman of the board, if any, the
President, a Vice President, or at the request in writing of one or more of the
whole Board of Directors stating the purpose or purposes of such meeting.
Notices of special meetings shall be mailed to each director addressed to him at
his residence or usual place of business not later than three (3) days before
the day on which the meeting is to be held or shall be sent to him at either of
such places by telegraph or shall be communicated to him personally or by
telephone, not later than the day before the date fixed for the meeting. Notice
of any meeting of the Board of Directors shall not be required to be given to
any director if he shall sign a written waiver thereof either before or after
the time stated therein for such meeting or if he shall be present at the
meeting and participate in the business transacted thereat. Any and all
business transacted at any meeting of the Board of Directors shall be fully
effective without any notice thereof having been given if all the members shall
be present thereat. Unless limited by law, the Certificate of Incorporation,
the By-Laws, or by the terms of the notice thereof, any and all business may be
transacted at any special meeting without the notice thereof having so
specifically enumerated the matters to be acted upon.
Section 3.8. Organization. The Chairman of the Board, if any, shall
preside at all meetings of the Board of Directors at which he is present. If
the Chairman of the Board shall be absent from any meeting of the Board of
Directors, the duties otherwise provided in this Section 3.8 to be performed by
him at such meeting shall be performed by the President. If both the Chairman
of the Board and the President shall be absent, such duties shall be performed
by a director designated by the President to preside at such meeting. If no
such officer or director is present at such meeting, one of the directors
present shall be chosen to preside by a majority vote of the members of the
Board of Directors present at such meeting. The Secretary of the Corporation
shall act as the
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secretary at all meetings of the Board of Directors and, in his absence, a
temporary secretary shall be appointed by the chairman of the meeting.
Section 3.9. Quorum and Adjournment. Except as otherwise provided by
Section 3.14 hereof and in the Certificate of Incorporation, at every meeting of
the Board of Directors a majority of the total number of directors shall
constitute a quorum. Except when the total number of directors is one, in no
event shall a quorum consist of less than two directors. Except as otherwise
provided by law, by the Certificate of Incorporation, by Sections 3.14, 4.1,
4.8, 4.9, 5.3, or 9.1 hereof, the vote of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum, any meeting may be adjourned from time
to time until a quorum is present. Notice of an adjourned meeting shall be
required to be given if notice was required to be given of the meeting as
originally called.
Section 3.10. Voting. On any question on which the Board of Directors
shall vote, the names of those voting and their votes shall be entered in the
minutes of the meeting when any member of the Board of Directors present at the
meeting so requests.
Section 3.11. Acting without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board of Directors or of
such committee, as the case may be, consent thereto in writing and such written
consents are filed with the minutes of such proceeding.
Section 3.12. Resignations. Any director may resign at any time by
written notice thereof to the Corporation. Any resignation shall be effective
immediately unless some other time is specified for it to take effect.
Acceptance of any resignation shall not be necessary to make it effective unless
such resignation is tendered subject to such acceptance.
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Section 3.13. Removal of Directors. Subject to any agreement in writing
between the stockholders of the Corporation, any director may be removed either
with or without cause at any time by action of the holders of record of a
majority of the outstanding shares of Stock of the Corporation then entitled to
vote at an election of directors at a meeting of holders of such shares. The
vacancy in the Board of Directors caused by any such removal may be filled by
action of such stockholders at such meeting or at any subsequent meeting.
Section 3.14. Filling of Newly Created Directorships or Vacancies. In
case of any increase in the number of directors or of any vacancy created by
death, resignation, or disqualification, the additional director or directors
may be elected or the vacancy or vacancies may be filled, as the case may be, by
the Board of Directors at any meeting by affirmative vote of a majority of the
remaining directors or by a sole remaining director though the remaining
director or directors be less than the quorum provided for in Section 3.9
hereof. Each director so chosen shall hold office until the next Annual Meeting
of Stockholders and until his successor is elected and qualifies or until such
director sooner dies, resigns, or is removed.
Section 3.15. Compensation of Directors. Directors may receive such sums
as compensation for their services and expenses as may be directed by resolution
of the Board of Directors; provided that nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity, and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for their service and expenses.
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ARTICLE IV
Committees of the Board
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A. Executive Committee
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Section 4.1. Appointment and Powers. The Board of Directors, by
resolution adopted by affirmative vote of a majority of the whole Board of
Directors, may appoint an Executive Committee and the members thereof consisting
of one or more members which shall have and may exercise, during the intervals
between the meetings of the Board of Directors, all of the powers of the Board
of Directors in the management of the business, properties and affairs of the
Corporation; provided, however, that the foregoing is subject to the applicable
provisions of law and the Certificate of Incorporation and shall not be
construed as authorizing action by the Executive Committee with respect to any
action which is required to be taken by vote of a specified proportion of the
whole Board of Directors. So far as practicable, the members of the Executive
Committee shall be appointed at the organization meeting of the Board of
Directors in each year and, unless sooner discharged by affirmative vote of a
majority of the whole Board of Directors, shall hold office until the next
annual organization meeting of the Board of Directors and until their respective
successors are appointed or until they sooner die, resign, or are removed. All
acts done and powers conferred by the Executive Committee shall be deemed to be,
and may be certified as being, done or conferred under authority of the Board of
Directors.
Section 4.2. Place of Meetings. Meetings of the Executive Committee may
be held at the principal place of business of the Corporation or at any other
place from time to time designated by the Board of Directors or the Executive
Committee. Meetings of the Executive Committee may be held, and one or more
members may attend any meeting of the Executive Committee, by telephonic
conference.
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Section 4.3. Meetings; Notice; and Waiver of Notice. Regular meetings of
the Executive Committee shall be held at such times as may be determined by
resolution either of the Board of Directors or the Executive Committee and no
notice shall be required for any regular meeting. Special meetings of the
Executive Committee shall be called by the Secretary or an Assistant Secretary
upon the request of any member of the Executive Committee. Notices of special
meetings shall be delivered personally to each member or shall be mailed to each
member either by over night courier service or first-class mail addressed to him
at his residence or usual place of business or other address provided to the
Corporation, or shall be sent to him at any of such places by telegraph,
telecopy, or shall be communicated to him personally or by telephone, such that
such notice is received by each member not later than the business day before
the date fixed for the meeting. Notice of any such meeting shall not be
required to be given to any member of the Executive Committee if he shall sign a
written waiver thereof either before or after the time stated therein for such
meeting or if he shall be present at the meeting and participate in the business
transacted thereat, and all business transacted at any meeting of the Executive
Committee shall be fully effective without any notice thereof having been given
if all the members shall be present thereat. Unless limited by law, the
Certificate of Incorporation, the By-Laws, or the terms of the notice thereof,
any and all business may be transacted at any special meeting without the notice
thereof having specifically enumerated the matters to be acted upon.
Section 4.4. Organization. The Chairman of the Executive Committee shall
preside at all meetings of the Executive Committee at which he is present. In
the absence of the Chairman of the Executive Committee, the Chairman of the
Board, if he is a member of the Executive Committee, shall preside at meetings
of the Executive Committee at which he is present. In the absence of the
Chairman of the Executive
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Committee and the Chairman of the Board, the Vice Chairman of the Board, if he
is a member of the Executive Committee, shall preside at meetings of the
Executive Committee at which he is present. In the absence of the Chairman of
the Executive Committee, the Chairman of the Board and the Vice Chairman of the
Board, the President, if he is a member of the Executive Committee, shall
preside at meetings of the Executive Committee at which he is present. In the
absence of the Chairman of the Executive Committee, the Chairman of the Board,
the Vice Chairman of the Board and the President, one of the members present
shall be chosen by the members of the Executive Committee present to preside at
such meeting. The Secretary of the Corporation shall act as secretary at all
meetings of the Executive Committee, if he is a member thereof, and, in his
absence, or if he is not a member thereof, a temporary secretary shall be
appointed by the chairman of the meeting.
Section 4.5. Quorum and Adjournment. A majority of the members of the
Executive Committee shall constitute a quorum for the transaction of business.
The vote of a majority of those present at any meeting at which a quorum is
present shall be the act of the Executive Committee. In the absence of a
quorum, any meeting may be adjourned from time to time until a quorum is
present. No notice of any adjourned meeting shall be required to be given other
than by announcement at the meeting that is being adjourned.
Section 4.6. Voting. On any question on which the Executive Committee
shall vote, the names of those voting and their votes shall be entered in the
minutes of the meeting when any member of the Executive Committee present at the
meeting so requests.
Section 4.7. Records. The Executive Committee shall keep minutes of its
acts and proceedings which shall be submitted at the next regular meeting of the
Board of Directors. Any action taken by the Board of Directors with respect
thereto shall be entered in the minutes of the Board of Directors. Each
director shall be entitled to receive a copy of the minutes of the Executive
Committee at his request.
Section 4.8. Vacancies; Alternate Members; and Absences. In case of any
increase in the number of members of the Executive Committee or of any vacancy
created
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by death, resignation, disqualification or otherwise, the additional member or
members may be elected or the vacancy or vacancies filled, as the case may be,
by affirmative vote of a majority of the remaining Board of Directors or by a
sole remaining director, though the remaining director or directors be less than
the quorum provided for herein. By similar vote, the Board of Directors may
designate one or more directors as alternate members of the Executive Committee
who may replace any absent or disqualified member at any meeting of the
Executive Committee.
B. Other Committees of the Board
-----------------------------
Section 4.9. Appointing Other Committees of the Board. The Board of
Directors from time to time by resolution adopted by affirmative vote of a
majority of the whole Board of Directors may appoint other committees of the
Board of Directors and the members thereof which shall have such powers of the
Board of Directors and such duties as the Board of Directors may properly
determine and as provided by law. Such other committee of the Board of
Directors shall consist of one or more directors. By similar vote, the Board of
Directors may designate one or more directors as alternate members of any such
committee who may replace any absent or disqualified member at any meeting of
any such committee. In the absence or disqualification of any member of any
such committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
Section 4.10. Place and Time of Meetings; Notice; Waiver of Notice; and
Records. Meetings of such other committees of the Board of Directors may be
held at any place from time to time designated by the Board of Directors or the
committee. Regular meetings of any such committee shall be held at such times
as may be determined by resolution of the Board of Directors or the committee
and no notice shall be required for
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any regular meeting. A special meeting of any such committee shall be called by
resolution of the Board of Directors or by the Secretary or an Assistant
Secretary upon the request of any member of the committee. The provisions of
Section 4.3 hereof with respect to notice and waiver of notice of special
meetings of the Executive Committee shall also apply to all special meetings of
other committees of the Board of Directors. Any such committee may make rules
for holding and conducting its meetings and shall keep minutes of all meetings.
Meetings of any such committee may be held, and one or more members of such
committee may attend any meeting of such committee, by telephonic conference.
ARTICLE V
The Officers
------------
Section 5.1. Officers. The officers of the Corporation shall be a
President, Vice President, Secretary and a Treasurer. The officers shall be
elected by the Board of Directors. The Board of Directors may also elect a
Chairman of the Board, an Executive Vice President, one or more Vice Presidents,
a Chairman of the Executive Committee, a Controller, one or more Second Vice
Presidents, Assistant Secretaries, Assistant Treasurers, Assistant Controllers
and such other officers and agents as in their judgment may be necessary or
desirable. The Chairman of the Board, the Chairman of the Executive Committee,
the President, and the Executive Vice President shall be selected from the
directors.
Section 5.2. Terms of Office and Vacancies. So far as is practicable, all
officers shall be appointed at the organization meeting of the Board of
Directors in each year and, except as otherwise provided in Sections 5.1, 5.3,
and 5.4 hereof, shall hold office until the organization meeting of the Board of
Directors in the next subsequent year and until their respective successors are
elected and qualify or until they sooner die, retire, resign or
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are removed. If any vacancy shall occur in any office, the Board of Directors
may elect a successor to fill such vacancy for the remainder of the term.
Section 5.3. Removal of Officers. Any officer may be removed at any time,
either with or without cause, by affirmative vote of a majority of the whole
Board of Directors at any regular meeting or at any special meeting called for
that purpose.
Section 5.4. Resignations. Any officer may resign at any time by giving
written notice thereof to the Corporation. Any resignation shall be effective
immediately unless some other date is specified for it to take effect.
Acceptance of any resignation shall not be necessary to make it effective
unless such resignation is tendered subject to such acceptance.
Section 5.5. Officers Holding More Than One Office. Any officer may hold
two or more offices so long as the duties of such offices can be consistently
performed by the same person.
Section 5.6. The Chairman of the Board. The Chairman of the Board, if
any, shall be a member of the Board of Directors. As provided in Section 2.6
hereof, he shall act as chairman at all meetings of the stockholders at which he
is present; as provided in Section 3.8 hereof, he shall preside at all meetings
of the Board of Directors at which he is present. He shall also perform such
other duties and shall have such other powers as may from time to time be
assigned to him by the Board of Directors. In the absence or disability of the
Chairman of the Board, the duties of the Chairman of the Board shall be
performed and his powers may be exercised by the President of the Board. In the
absence or disability of the Chairman of the Board and the President, the powers
of the Chairman of the Board may be exercised by such member of the Board of
Directors as may be designated by the Chairman of the Board and, failing such
designation or in the absence of
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the person so designated, by such member of the Board of Directors as may be
designated by the President.
Section 5.7. The President. The President shall be the chief executive
officer of the Corporation and, subject to the control of the Board of
Directors, shall have general and active charge, control, and supervision of the
business, property and affairs of the Corporation, shall approve all operating
expense and capital expenditure budgets and shall formulate recommendations to
the Board of Directors for its action and decision. In the absence or
disability of the President, the duties of the President shall be performed and
his powers may be exercised by the Chairman of the Board. If neither the
President nor the Chairman of the Board is available, the duties of the
President shall be performed and his powers may be exercised by such member of
the Board of Directors as may be designated by the President and, failing such
designation or in the absence of the person so designated, by such member of the
Board of Directors as may be designated by the Chairman of the Board. In the
absence of such designation by the Chairman of the Board, the duties of the
President shall be performed and his powers may be exercised by such member of
the Board of Directors, or such officer of the Corporation, as may be designated
by the Board of Directors.
Section 5.8. The Vice Presidents. The Vice Presidents, if any, including
the Executive Vice President, shall perform such duties and have such powers as
may from time to time be assigned to them by the Board of Directors, the
Chairman of the Board or the President.
Section 5.9. The Secretary. The Secretary shall attend to the giving of
notice of each meeting of stockholders, the Board of Directors and committees
thereof and, as provided in Sections 2.6 and 3.8 hereof, shall act as secretary
at each meeting of stockholders and directors. He shall keep minutes of all
proceedings at such meetings as well as of all proceedings at all meetings of
such other committees of the Board of
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Directors as any such committee shall direct him to so keep. The Secretary shall
have charge of the corporate seal and he or any officer of the Corporation shall
have authority to attest to any and all instruments or writings to which the
same may be affixed. He shall keep and account for all books, documents, papers
and records of the Corporation except those for which some other officer or
agent is properly accountable. He shall generally perform all the duties usually
appertaining to the office of secretary of a corporation. In the absence of the
Secretary, such person as shall be designated by the chairman of any meeting
shall perform his duties.
Section 5.10. The Treasurer. The Treasurer shall have the care and
custody of all the funds of the Corporation and shall deposit such funds in such
banks or other depositories as the Board of Directors or any officer or officers
thereunto duly authorized by the Board of Directors shall from time to time
direct or approve. In the absence of a Controller, he shall perform all duties
appertaining to the office of Controller of the Corporation. He shall generally
perform all the duties usually appertaining to the office of treasurer of a
corporation. When required by the Board of Directors, he shall give bonds for
the faithful discharge of his duties in such sums and with such sureties as the
Board of Directors shall approve. In the absence of the Treasurer, such person
as shall be designated by the Chairman of the Board or President shall perform
his duties.
Section 5.11. The Controller. The Controller shall prepare and have the
care and custody of the books of account of the Corporation. He shall keep a
full and accurate account of all moneys received and paid on account of the
Corporation. He shall render a statement of his accounts whenever the Board of
Directors shall require. He shall generally perform all the duties usually
appertaining to the office of controller of a corporation. When required by the
Board of Directors, he shall give bonds for the faithful discharge of his duties
in such sums and with such sureties as the Board of Directors shall approve.
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Section 5.12. Additional Powers and Duties. In addition to the foregoing
specifically enumerated duties and powers, the several officers of the
Corporation shall perform such other duties and exercise such further powers as
the Board of Directors may from time to time determine or as may be assigned to
them by any superior officer. The salaries of all officers shall be fixed by
the Board of Directors except as otherwise directed by the Board of Directors.
ARTICLE VI
Transactions With Directors and Officers
----------------------------------------
Section 6.1. Transactions with Directors and Officers. No contract or
transaction between the Corporation and one or more of its directors or officers
or between the Corporation and any other corporation, partnership, association
or other organization, in which one or more of its directors or officers are
directors or officers or have a financial interest, shall be void or voidable
solely for such reason or solely because the director or officer is present at
or participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction or solely because his or their
votes are counted for such purpose if: (a) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee and the Board of Directors
or the committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors even though the
disinterested directors may be less than a quorum; or (b) the material facts as
to his relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (c) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting
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of the stockholders or the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE VII
Stock and Transfers of Stock
----------------------------
Section 7.1. Stock Certificates. The Stock of the Corporation shall be
represented by certificates signed by two officers of the Corporation, one the
Chairman of the Board, the President or a Vice President and the other the
Secretary or an Assistant Secretary. Any or all of the signatures may be a
facsimile. Such certificates shall be sealed with the seal of the Corporation.
Such seal may be a facsimile, engraved or printed. In case any officer who has
signed any such 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. Certificates
representing the Stock of the Corporation shall be in such form as shall be
approved by the Board of Directors.
Section 7.2. Restrictive Legend on Certificates. Every certificate
representing shares of Stock of the Corporation shall bear a legend
substantially in the following form:
"The shares of stock represented hereby have been acquired for investment
and not with a view to distribution or resale, have not been registered
under the Securities Act of 1933, as amended, and are transferable only in
accordance with and upon proof of compliance with the Securities Act of
1933, as amended, and the Rules promulgated thereunder."
Section 7.3. Registration of Transfers of Stock. Registration of a
transfer of Stock shall be made on the books of the Corporation only upon
presentation by the person
-25-
named in the certificate evidencing such stock, or by an attorney lawfully
authorized in writing, upon surrender and cancellation of such certificate, with
duly executed assignment and power of transfer endorsed thereon or attached
thereto, and with such proof of the authenticity of the signature thereon as the
Corporation or its agents may reasonably require.
Section 7.4. Lost Certificates. In case any certificate representing
Stock shall be lost, stolen or destroyed, the Board of Directors in its
discretion or any officer or officers thereunto duly authorized by the Board of
Directors may authorize the issuance of a substitute certificate in the place of
the certificate so lost, stolen or destroyed; provided, however, in each such
case the Corporation may require the owner of the lost, stolen or destroyed
certificate or his legal representative to give the Corporation evidence which
the Corporation determines in its discretion satisfactory of the loss, theft or
destruction of such certificate and of the ownership thereof and may also
require a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 7.5. Determination of Stockholders of Record for Certain Purposes.
In order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix in advance a record date which shall not be more than sixty (60) days
prior to any such action.
ARTICLE VIII
Miscellaneous
-------------
Section 8.1. Seal. The seal of the Corporation shall have inscribed
thereon the name of the Corporation, the year of its organization and the state
of its incorporation.
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Section 8.2. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 8.3. Signatures on Negotiable Instruments. All bills, notes,
checks or other instruments for the payment of money shall be signed or
countersigned by such officers or agents of Corporation and in such manner as
from time to time may be prescribed by resolution (whether general or special)
of the Board of Directors or as may be prescribed by any officer or officers or
any officer and agent jointly thereunto duly authorized by the Board of
Directors.
Section 8.4. Indemnification.
(a) Subject to Subsection (c) of this Section 8.4, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner that he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
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(b) Subject to Subsection (c) of this Section 8.4, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation; except that no
indemnification shall be made with respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) Any indemnification under this Section 8.4 (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Subsection (a) or Subsection (b), as the case may be. Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of
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any claim, issue or matter herein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case.
(d) Notwithstanding any contrary determination in the specific case under
Subsection (c) of this Section 8.4, and notwithstanding the absence of any
determination thereunder, any director, officer, employee or agent may apply to
any court of competent jurisdiction in the State of Delaware for indemnification
to the extent otherwise permissible under Subsections (a) and (b) of this
Section 8.4. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standards of conduct set forth in Subsections (a) and (b) of this
Section 8.4, as the case may be. Notice of any application for indemnification
pursuant to this Section 8.4 shall be given to the Corporation promptly upon the
filing of such application.
(e) Expenses incurred in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Section 8.4.
(f) The indemnification and advancement of expenses provided by or granted
pursuant to this Section 8.4 shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any By-law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. It is
the policy of the Corporation that indemnification of the persons specified in
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Subsections (a) and (b) of this Section 8.4 shall be made to the fullest extent
permitted by law. The provisions of this Section 8.4 shall not be deemed to
preclude the indemnification of any person who is not specified in Subsections
(a) and (b) of this Section 8.4 but whom the Corporation has the power or
obligation to indemnify under the provisions of the General Corporation Law of
the State of Delaware, or otherwise.
(g) The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power or the obligation to indemnify him against such liability
under the provisions of this Section 8.4.
(h) For purposes of this Section 8.4, references to "the Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents so that
any person who is or was a director, officer, employee or agent of such
constiuent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Section 8.4 with respect to the resulting
or surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(i) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section 8.4 shall, unless otherwise provided when authorized
or ratified,
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continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
Section 8.5. Books of the Corporation. Except as otherwise provided by
law, the books of the Corporation shall be kept at the principal place of
business of the Corporation and at such other locations as the Board of
Directors may from time to time determine.
Section 8.6. References to Gender. Whenever in the By-Laws reference is
made to the masculine gender, such reference shall where the context so requires
be deemed to include the feminine gender, and the By-Laws shall be read
accordingly.
Section 8.7. References to Article and Section Numbers and to the By-Laws
and the Certificate of Incorporation. Whenever in the By-Laws reference is made
to an Article or Section number, such reference is to the number of an Article
or Section of the By-Laws. Whenever in the By-Laws reference is made to the By-
Laws, such reference is to these By-Laws of the Corporation as the same may from
time to time be amended. Whenever reference is made to the Certificate of
Incorporation, such reference is to the Certificate of Incorporation of the
Corporation as the same may from time to time be amended.
ARTICLE IX
Amendments
----------
Section 9.1. Amendments. Except as otherwise provided in the Certificate
of Incorporation, the By-Laws may be altered, amended or repealed from time to
time by the Board of Directors by affirmative vote of a majority of the whole
Board of Directors except such of the By-Laws as shall have been made from time
to time by holders of shares of Stock entitled to vote thereon. The By-Laws may
be altered, amended or
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repealed at any annual or special meeting of stockholders. Notice of such
proposed alteration, amendment or repeal setting forth the substance or text
thereof shall be included in the notice of any meeting of the Board of Directors
or stockholders called to consider any such alteration, amendment or repeal.
* * * * * * * * *
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