AMENDED AND RESTATED
BY-LAWS
OF OCCULOGIX, INC.
TABLE OF CONTENTS
PAGE
ARTICLE I STOCKHOLDERS..................................................... 1
Section 1.1 Annual Meeting............................. 1
Section 1.2 Special Meetings........................... 1
Section 1.3 Notice of Meetings......................... 1
Section 1.4 Adjournments............................... 1
Section 1.5 Quorum..................................... 1
Section 1.6 Organization............................... 2
Section 1.7 Conduct of Business........................ 2
Section 1.8 Proxies and Voting......................... 2
Section 1.9 Stock List................................. 2
Section 1.10 Stockholder Action by Written Consent...... 3
ARTICLE II BOARD OF DIRECTORS............................................... 3
Section 2.1 Number and Term of Office.................. 3
Section 2.2 Vacancies and Newly Created
Directorships.............................. 3
Section 2.3 Removal.................................... 3
Section 2.4 Regular Meetings........................... 4
Section 2.5 Special Meetings........................... 4
Section 2.6 Quorum..................................... 4
Section 2.7 Participation in Meetings by Conference
Telephone.................................. 4
Section 2.8 Conduct of Business........................ 4
Section 2.9 Powers..................................... 5
Section 2.10 Compensation of Directors.................. 5
Section 2.11 Nomination of Director Candidates.......... 5
ARTICLE III COMMITTEES....................................................... 6
Section 3.1 Committees of the Board of Directors....... 6
Section 3.2 Conduct of Business........................ 6
ARTICLE IV OFFICERS......................................................... 6
Section 4.1 Generally.................................. 6
Section 4.2 Chairman of the Board...................... 6
Section 4.3 Chief Executive Officer.................... 7
Section 4.4 Vice President............................. 7
Section 4.5 Chief Financial Officer.................... 7
Section 4.6 Secretary.................................. 7
Section 4.7 Delegation of Authority.................... 8
Section 4.8 Removal.................................... 8
Section 4.9 Action With Respect to Securities of
Other Corporations......................... 8
ARTICLE V STOCK............................................................ 8
Section 5.1 Certificates of Stock...................... 8
Section 5.2 Transfers of Stock......................... 8
Section 5.3 Record Date................................ 9
Section 5.4 Lost, Stolen or Destroyed Certificates..... 9
Section 5.5 Regulations................................ 9
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE VI NOTICES.......................................................... 9
Section 6.1 Notices.................................... 9
Section 6.2 Waivers.................................... 9
ARTICLE VII MISCELLANEOUS....................................................10
Section 7.1 Facsimile Signatures.......................10
Section 7.2 Corporate Seal.............................10
Section 7.3 Reliance Upon Books, Reports
and Records................................10
Section 7.4 Fiscal Year................................10
Section 7.5 Time Periods...............................10
Section 7.6 Related Party Transactions.................10
ARTICLE VIII INDEMNIFICATION OF DIRECTORS AND OFFICERS........................10
Section 8.1 Right to Indemnification...................10
Section 8.2 Right of Claimant to Bring Suit............11
Section 8.3 Non Exclusivity of Rights..................12
Section 8.4 Indemnification Contracts..................12
Section 8.5 Insurance..................................12
Section 8.6 Effect of Amendment........................12
ARTICLE IX AMENDMENTS.......................................................12
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AMENDED AND RESTATED
BY-LAWS
OF
OCCULOGIX, INC.
ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meeting. An annual meeting of the stockholders of
OccuLogix, Inc. (the "Corporation"), 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 (either within or without the State of Delaware), on
such date, and at such time as the Board of Directors of the Corporation (the
"Board of Directors") shall each year fix, which date shall be within thirteen
months subsequent to the later of the date of incorporation or the last annual
meeting of stockholders.
Section 1.2 Special Meetings. Special meetings of the stockholders, for
any purpose or purposes prescribed in the notice of the meeting, may be called
by (i) the Chairman of the Board of Directors, (ii) a majority of the Board of
Directors, or (iii) holders of at least two-thirds
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of outstanding voting stock Business transacted at special meetings shall be
confined to the purpose or purposes stated in the notice.
Section 1.3 Notice of Meetings. Written notice of the place, date, and
time of all meetings of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be given not less
than ten (10) nor more than sixty (60) days before the date on which the meeting
is to be held, to each stockholder entitled to vote at such meeting, except as
otherwise provided herein or required by law (meaning, here and hereinafter, as
required from time to time by the Delaware General Corporation Law or the
Certificate of Incorporation of the Corporation).
Section 1.4 Adjournments. When a meeting is adjourned to another place,
date or time, written notice need not be given of the adjourned meeting if the
place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the date of any adjourned
meeting is more than thirty (30) days after the date for which the meeting was
originally noticed, or if a new record date is fixed for the adjourned meeting,
written notice of the place, date, and time of the adjourned meeting shall be
given in conformity herewith. At any adjourned meeting, any business may be
transacted which might have been transacted at the original meeting.
Section 1.5 Quorum. At any meeting of the stockholders, the holders of a
majority of all of the shares of the stock entitled to vote at the meeting,
present in person or by proxy, shall constitute a quorum for all purposes,
unless or except to the extent that the presence of a larger number may be
required by law or by the Certificate of Incorporation or Amended and Restated
By-laws of this Corporation.
If a quorum shall fail to attend any meeting, the chairman of the meeting
or the holders of a majority of the shares of stock entitled to vote who are
present, in person or by proxy, may adjourn the meeting to another place, date,
or time.
Section 1.6 Organization. Such person as the Board of Directors may have
designated or, in the absence of such a person, the chief executive officer of
the Corporation or, in his absence, such person as may be chosen by the holders
of a majority of the shares entitled to vote who are present, in person or by
proxy, shall call to order any meeting of the stockholders and act as chairman
of the meeting. In the absence of the Secretary of the Corporation, the
secretary of the meeting shall be such person as the chairman appoints.
Section 1.7 Conduct of Business. The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seem to him in order.
Section 1.8 Proxies and Voting. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing filed in accordance with the procedure established for the
meeting. A 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
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in writing revoking the proxy or by delivering a proxy in accordance with
applicable law bearing a later date to the Secretary of the Corporation.
Each stockholder shall have one vote for every share of stock entitled to
vote which is registered in his name on the record date for the meeting, except
as otherwise provided herein or required by law.
Every stock vote shall be taken by ballots, each of which shall state the
name of the stockholder or proxy voting and such other information as may be
required under the procedure established for the meeting. Every vote taken by
ballots shall be counted by an inspector or inspectors appointed by the chairman
of the meeting.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law or these by-laws, all other matters shall be
determined by a majority of the votes cast.
Section 1.9 Stock List. A complete list of stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the number of shares
registered in his or her name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place
where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any, such stockholder
who is present. Except as otherwise provided by law, this list shall
presumptively determine the identity of the stockholders entitled to vote in
person or by proxy at any meeting and the number of shares held by each of them.
Section 1.10 Stockholder Action by Written Consent. Any action which
maybe taken at any annual or special meeting of stockholders may be taken
without a meeting end without prior notice, if a consent or consents in writing,
setting forth the actions so taken, is signed by the holders of outstanding
shares having not less than the minimum number of votes which would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. All such consents shall be filed with the
secretary of the Corporation and shall be maintained in the corporate records.
Prompt notice of the taking of a corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number and Term of Office. The authorized number of directors
shall not be less than five (5) nor more than nine (9) and the exact number of
directors shall initially be set at five (5), and, thereafter, the minimum
and/or maximum number of directors shall be fixed from time to time exclusively
by the Board of Directors pursuant to a resolution adopted by a majority of the
total number of authorized directors (whether or not there exist any vacancies
in
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previously authorized directorships at the time any such resolution is presented
to the Board of Directors for adoption). Each director shall hold office until
his successor is elected and qualified or until his earlier death, resignation,
retirement, disqualification or removal. Directors will be elected for a term
that will expire at the annual meeting of the stockholders immediately
succeeding their election.
Section 2.2 Vacancies and Newly Created Directorships. Newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, or other cause (other than removal from office by
a vote of the stockholders) may be filled only by a majority vote of the
directors then in office. Directors so chosen shall hold office for a term
expiring at the next annual meeting of stockholders. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
Section 2.3 Removal. Subject to the limitations stated in the Certificate
of Incorporation, any director, or the entire Board of Directors, may be removed
from office at any time, with or without cause, but only by the affirmative vote
of the holders of at least a majority of the voting power of all, of the
then-outstanding shares of stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single class. Vacancies in
the Board of Directors resulting from such removal may be filled by a majority
of the directors remaining, even though less than a quorum of the Board of
Directors, or by the sole remaining director. If such vacancy was caused by an
action of the stockholders, the vacancy shall be filled by the affirmative vote
of the holders of at least a majority of the total voting power of the then
outstanding voting stock. Directors so chosen shall hold office until a
successor shall be elected and qualified and, if the Board of Directors at such
time is classified, until the next election of the class for which such director
shall have been chosen. No decrease in the number of Directors shall shorten the
term of any incumbent director.
Section 2.4 Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place or places, within or without the State of Delaware,
on such date or dates, and at such time or times as shall have been established
by the Board of Directors and publicized among all directors: A notice of each
regular meeting shall not be required.
Section 2.5 Special Meetings. Special meetings of the Board of Directors
may be called by any member of the directors then in office, by the Chairman of
the Board, or by the Chief Executive Officer and shall be held at such place,
within or without the State of Delaware, on such date, and at such time as they
shall fix. Notice of the place, date, and time of each such special meeting
shall be given to each director by whom it is not waived by mailing written
notice not less than five (5) days before the meeting (one (1) day before the
meeting if delivered by an overnight courier service and two (2) days before the
meeting if by overseas courier service) or by telephoning, telecopying,
telegraphing or personally delivering the same not less than twenty-four (24)
hours before the meeting. Unless otherwise indicated in the notice thereof, any
and all business may be transacted at a special meeting.
Section 2.6 Quorum. At any meeting of the Board of Directors, a majority
of the total number of authorized directors then in office shall constitute a
quorum for all purposes. If a
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quorum shall fail to attend any meeting, a majority of those present may adjourn
the meeting to another place, date, or time, without further notice or waiver
thereof.
Section 2.7 Participation in Meetings by Conference Telephone. Members of
the Board of Directors, or of any committee of the Board of Directors, may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute presence in person at such meeting.
Section 2.8 Conduct of Business. At any meeting of the Board of
Directors, business shall be transacted in such order and manner as the Board
may from time to time determine, and all matters shall be determined by the vote
of a majority of the directors present, except as otherwise provided herein or
required by law. Action may be taken by the Board of Directors without a meeting
if all members thereof consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the Board of Directors.
Section 2.9 Powers. The Board of Directors may, except as otherwise
restricted by the Certificate of Incorporation of the Corporation or required by
law, exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, including, without limiting the generality
of the foregoing, the unqualified power:
(i) To declare dividends from time to time in accordance with
law;
(ii) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(iii) To authorize the creation, making and issuance, in such
form as it may determine, of written obligations of every kind, negotiable or
non negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(iv) To remove any officer of the Corporation with or without
cause, and from time to time to pass on the powers and duties of any officer
upon any other person for the time being;
(v) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(vi) To adopt from time to time such stock option, stock
purchase, bonus or other compensation plans for directors, officers, employees,
consultants and agents of the Corporation and its subsidiaries as it may
determine;
(vii) To adopt from time to time such insurance, retirement, and
other benefit plans for directors, officers, employees, consultants and agents
of the Corporation and its subsidiaries as it may determine; and
(viii) To adopt from time to time regulations, not inconsistent
with these by-laws and the Certificate of Incorporation of the Corporation, for
the management of the Corporation's business and affairs.
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Section 2.10 Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the Board of Directors.
Section 2.11 Nomination of Director Candidates. Nominations for the
election of directors may be made by the Board of Directors or a proxy committee
appointed by the Board of Directors or by any stockholder entitled to vote in
the election of directors.
ARTICLE III
COMMITTEES
Section 3.1 Committees of the Board of Directors. The Board of Directors,
by a vote of a majority of the whole Board, may from time to time designate
committees of the Board, with such lawfully delegable powers and duties as it
thereby confers, to serve at the pleasure of the Board and shall, for those
committees and any others provided for herein, elect a director or directors to
serve as the member or members, designating, if it desires, other directors as
alternate members who may replace any absent or disqualified member at any
meeting of the committee. Any committee so designated may exercise the power and
authority of the Board of Directors to declare a dividend, to authorize the
issuance of stock or to adopt an agreement of merger or consolidation if the
resolution which designates the committee or a, supplemental resolution of the
Board of Directors shall so provide. In the absence or disqualification of any
member of any committee and any alternate member in his place, the member or
members of the committee present at the meeting and not disqualified from
voting, whether or not he or she or they constitute a quorum, may by unanimous
vote appoint another member of the Board of Directors to act at the meeting in
the place of the absent or disqualified member.
Section 3.2 Conduct of Business. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings; one
third of the authorized members shall constitute a quorum unless the committee
shall consist of one or two members, in which event one member shall constitute
a quorum; and all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of such committee.
ARTICLE IV
OFFICERS
Section 4.1 Generally. The officers of the Corporation shall consist of a
Chief Executive Officer, Chief Financial Officer, Secretary and Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, a
Chairman of the Board and a Vice Chairman of the Board from among its members.
The Board of Directors may also choose one or more Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers and such other officers
as may from time to time be appointed by the Board of Directors. Officers shall
be elected by the Board of Directors, which shall consider that subject at its
first meeting after every
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annual meeting of stockholders. Each officer shall hold office until his or her
successor is elected and qualified or until his or her earlier resignation or
removal. Any number of offices may be held by the same person.
Section 4.2 Chairman of the Board. The Chairman of the Board, if there
shall be such an officer, shall, if present, preside at all meetings of the
Board of Directors, and exercise and perform such other powers and duties as may
be from time to time assigned to him by the Board of Directors or as provided by
these by-laws.
Section 4.3 Chief Executive Officer. Unless otherwise designated by the
Board of Directors or another individual is appointed or elected to such office,
the Chief Executive Officer of the Corporation shall be the President. Subject
to such supervisory powers, if any, as may be given by the Board of Directors to
the Chairman of the Board, if there be such an officer, the Chief Executive
Officer shall be the general manager and chief operating officer of the
Corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction, and control of the business and officers of the
Corporation. He shall preside at all meetings of the stockholders. He shall have
the general powers and duties of management usually vested in the office of
chief executive officer or President of a Corporation, and shall have such other
powers and duties as may be prescribed by the Board of Directors or by these
by-laws.
Section 4.4 Vice President. In the absence or, disability of the Chief
Executive Officer, the Vice Presidents in order of their rank, as fixed by the
Board of Directors, or if not ranked, the Vice President designated by the Board
of Director, shall perform the duties of the Chief Executive Officer, and when
so acting shall have all the powers of, and be subject to all the restrictions
upon, the Chief Executive Officer. The Vice Presidents shall have such other
powers and perform such other duties as from time to time may be prescribed for
them respectively by the Board of Directors or these by-laws.
Section 4.5 Chief Financial Officer. Unless otherwise designated by the
Board of Directors, the Chief Financial Officer shall be the Treasurer. The
Chief Financial Officer shall keep and maintain or cause to be kept and
maintained, adequate and correct books and records of account in written form or
any other form capable of being converted into written form.
The Chief Financial Officer shall deposit all monies and other valuables
in the name and to the credit of the Corporation with such depositaries as may
be designated by the Board of Directors. He shall disburse all funds of the
Corporation as may be ordered by the Board of Directors, shall render to the
Chief Executive Officer and directors, whenever they request it, an account of
all of his transactions as Chief Financial Officer and of the financial
condition of the Corporation, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by these by-laws.
Section 4.6 Secretary. The Secretary shall keep, or cause to be kept, a
book of minutes in written form of the proceedings of the Board of Directors,
committees of the Board, and stockholders. Such minutes shall include all
waivers of notice, consents to the holding of meetings, or approvals of the
minutes of meetings executed pursuant to these by-laws or the Delaware General
Corporation Law. The Secretary shall keep, or cause to be kept at the
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principal executive office or at the office of the Corporation's transfer agent
or registrar, a record of its stockholders, giving the names and addresses of
all stockholders and the number and class of shares held by each.
The Secretary shall give or cause to be given, notice of all meetings of
the stockholders and of the Board of Directors required by these by-laws or by
law to be given, and shall keep the seal of the Corporation in safe custody, and
shall have such other powers and perform such other duties as may be prescribed
by the Board of Directors or these by-laws.
Section 4.7 Treasurer. Subject to the power and responsibilities vested
in the Chief Financial Officer, if any, the Treasurer shall keep and maintain or
cause to be kept and maintained, adequate and correct accounts of the properties
and business transactions of the Corporation. The books of account shall be open
to inspection by any director at all reasonable items. The Treasurer shall
deposit all monies and other valuables in the name of and to the credit of the
Corporation with such depositories as may be designated by the Board of
Directors, and he shall render to the President and directors whenever they
request it an account of all transactions and of the financial condition of the
Corporation, and shall have such other powers and perform such other duties as
may be prescribed by the Board of Directors or the bylaws.
Section 4.8 Delegation of Authority. The Board of Directors may from time
to time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
Section 4.9 Removal. Any officer of the Corporation elected by the Board
of Directors may be removed at any time, with or without cause, by the Board of
Directors.
Section 4.10 Action With Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the Chief Executive Officer
or any officer of the Corporation authorized by the Chief Executive Officer
shall have power to vote and otherwise act on behalf of the Corporation, in
person or by proxy, at any meeting of stockholders of or with respect to any
action of stockholders of any other corporation in which this Corporation may
hold securities and otherwise to exercise any and all rights and powers which
this Corporation may possess by reason of its ownership of securities in such
other corporation.
ARTICLE V
STOCK
Section 5.1 Certificates of Stock. Each stockholder shall be entitled to
a certificate signed by, or in the name of the Corporation by, the Chairman or
Vice Chairman, if any, of the Board of Directors, or the Chief Executive Officer
or a Vice President, and by the Secretary or an Assistant Secretary, or the,
Treasurer or an Assistant Treasurer, certifying the number of shares owned by
him or her. Any or all of the signatures on the certificate may be facsimile.
Section 5.2 Transfers of Stock. Transfers of stock shall be made only
upon the transfer books of the Corporation kept at an office of the Corporation
or by transfer agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance with Section 5.4
of these by-laws, an outstanding certificate for the number of shares involved
shall be surrendered for cancellation before a new certificate is issued
therefor.
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Section 5.3 Record Date. The Board of Directors may fix a record date,
which shall not be more than sixty (60) nor fewer than ten (10) days before the
date of any meeting of stockholders, nor more than sixty (60) days prior to the
time for the other action hereinafter described, as of which there shall be
determined the stockholders who are entitled: to notice of or to vote at any
meeting of stockholders or any adjournment thereof; to receive payment of any
dividend or other distribution or allotment of any rights; or to exercise any
rights with respect to any change, conversion or exchange of stock or with
respect to any other lawful action.
Section 5.4 Lost, Stolen or Destroyed Certificates. In the event of the
loss, theft or destruction of any certificate of stock, another may be issued in
its place pursuant to such regulations as the Board of Directors may establish
concerning proof of such loss, theft or destruction and concerning the giving of
a satisfactory bond or bonds of indemnity.
Section 5.5 Regulations. The issue, transfer, conversion and registration
of certificates of stock shall be governed by such other regulations as the
Board of Directors may establish.
ARTICLE VI
NOTICES
Section 6.1 Notices. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder, director,
officer, employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the mails, postage paid, or by sending such notice by prepaid
telegram, mailgram, telecopy or commercial courier service. Any such notice
shall be addressed to such stockholder, director, officer, employee or agent at
his or her last known address as the same appears on the books of the
Corporation. The time when such notice shall be deemed to be given shall be the
time such notice is received by such stockholder, director, officer, employee or
agent, or by any person accepting such notice on behalf of such person, if hand
delivered, or the time such notice is dispatched, if delivered through the mails
or by telegram, courier or mailgram.
Section 6.2 Waivers. A written waiver of any notice, signed by the person
entitled to notice whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be
given to such person. Neither the business nor the purpose of any meeting need
be specified in such a waiver. Attendance of a person at a meeting shall
constitute a waiver of notice for such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Facsimile Signatures. In addition to the provisions for use
of facsimile signatures elsewhere specifically authorized in these by-laws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
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Section 7.2 Corporate Seal. The Board of Directors may provide a suitable
seal, containing the name of the Corporation, which seal shall be in the charge
of the Secretary. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the Chief
Financial Officer or by an Assistant Secretary or other officer designated by
the Board of Directors.
Section 7.3 Reliance Upon Books, Reports and Records. Each director, each
member of any committee designated by the Board of Directors, and each officer
of the Corporation shall, in the performance of his duties, be fully protected
in relying in good faith upon the books of account or other records of the
Corporation, including reports made to the Corporation by any of its officers,
by an independent certified public accountant, or by an appraiser.
Section 7.4 Fiscal Year. The fiscal year of the Corporation shall be as
fixed by the Board of Directors.
Section 7.5 Time Periods. In applying any provision of these by-laws
which require that an act be done or not done a specified number of days prior
to an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded, and the day of the event shall be included.
Section 7.6 Related Party Transactions. The Corporation shall not enter
into any agreement with any stockholder, officer or director of the Corporation,
or any " affiliate" or " associate" of such persons (as such terms are defined
in the rules and regulations promulgated under the Securities Act of 1933, as
amended), including without limitation any agreement or other arrangement
providing for the furnishing of services by, rental of real or personal property
form, or otherwise requiring payments to, any such person or entity, without the
consent of at least a majority of the members of the Board of Directors having
no interest in such agreement or arrangement.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.1 Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is' involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative ("
proceeding"), by reason of the fact that he or she or a person of whom he or she
is the legal representative, is or was a director or officer of the Corporation
or is or was serving at the request of the Corporation as a director or officer
of another corporation; or as a controlling person of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or employee or in any other capacity
while serving as a director or officer, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said Law permitted
the Corporation to provide prior to such amendment) against all expenses,
liability and loss reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director
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or officer and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in Section 8.2, the
Corporation shall indemnify any such person seeking indemnity in connection with
an action, suit or proceeding (or part thereof) initiated by such person only if
(i) such indemnification is expressly required to be made by law, (ii) the
action, suit or proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation, (iii) such indemnification is provided by the
Corporation, in its sole discretion, pursuant to the powers vested in the
Corporation under the Delaware General Corporation Law, or (iv) the action, suit
or proceeding (or part thereof) is brought to establish or enforce a right to
indemnification under an indemnity agreement or any other statute or law or
otherwise as required under Section 145 of the Delaware General Corporation Law.
The rights hereunder shall be contract rights and shall include the right to be
paid by the Corporation expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Delaware
General Corporation Law then so requires, the payment of such expenses incurred
by a director or officer of the Corporation in his or her capacity as a director
or officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of such
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it should be determined ultimately that such director or officer
is not entitled to be indemnified under this Section or otherwise.
Section 8.2 Right of Claimant to Bring Suit. If a claim under Section 8.1
is not paid in full by the Corporation within thirty (30) days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if such suit is not frivolous or brought in bad faith, the
claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any, has been tendered
to this Corporation) that the claimant has not met the standards of conduct
which make it permissible under the Delaware General Corporation Law for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that a claimant has not
met such applicable standard of conduct.
Section 8.3 Non Exclusivity of Rights. The rights conferred on any person
by Sections 8.1 and 8.2 shall not be exclusive of any other right which such
persons may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 8.4 Indemnification Contracts. The Board of Directors is
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person
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serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, including employee benefit plans, providing for indemnification
rights equivalent to or, if the Board of Directors so determines, greater than,
those provided for in this Article VIII.
Section 8.5 Insurance. The Corporation may maintain insurance to the
extent reasonably available, at its expense, to protect itself and any such
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under Delaware
General Corporation Law.
Section 8.6 Effect of Amendment. Any amendment, repeal or modification of
any provision of this Article VIII by the stockholders or the directors of the
Corporation shall not adversely affect any right or protection of a director or
officer of the Corporation existing at the time of such amendment, repeal or
modification.
ARTICLE IX
AMENDMENTS
Except as expressly restricted in the Certificate of Incorporation of the
Corporation, the Board of Directors is expressly empowered to adopt, amend or
repeal by-laws of the Corporation, subject to the right of the stockholders to
adopt, amend, alter or repeal the by-laws of the Corporation. Except as
expressly restricted in the Certificate of Incorporation of the Corporation, any
adoption, amendment or repeal of by-laws of the Corporation by the Board of
Directors shall require the approval of a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any resolution providing for adoption,
amendment or repeal is presented to the Board). Except as expressly restricted
in the Certificate of Incorporation of the Corporation, the stockholders shall
also have power to adopt, amend or repeal the by-laws of the Corporation.