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EXHIBIT 3(m)
CANTEL MEDICAL CORP.
(Delaware)
BY-LAWS
(As amended through April 24, 2002)
ARTICLE I
MEETING OF STOCKHOLDERS
Sec. 1. ANNUAL MEETING. The Annual Meeting of Stockholders shall be held at
the principal office of the Corporation or such other place as the Board of
Directors may select on such date and at such time as may be fixed by resolution
of the Board of Directors. The Secretary shall serve personally, or by mail, a
written notice thereof, addressed to each stockholder at his address as it
appears on the stock book; but at any meeting at which all stockholders shall be
present, or of which all stockholders not present have waived notice in writing,
the giving of notice as above required may be dispensed with. Any annual meeting
of stockholders may be postponed by resolution of the Board of Directors upon
public notice given prior to the date previously scheduled for such annual
meeting of stockholders.
Sec. 2. QUORUM. The presence, in person or by proxy, of the holders of a
majority of the outstanding stock entitled to vote generally shall be necessary
to constitute a quorum for the transaction of business, except that when
specified business is to be voted on by a class or series of stock voting as a
class, the holders of a majority of the shares of such class or series shall
constitute a quorum of such class or series for the transaction of such
businesses. Whether or not a quorum is present, the Chairman of the meeting or a
majority of the stockholders present in person or by proxy may adjourn the
meeting from time to time. No notice of the time and place of adjourned meetings
need be given except as required by law. The stockholders present in person or
by proxy at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of sufficient stockholders to
constitute the remaining stockholders less than a quorum.
Sec. 3. SPECIAL MEETINGS. Subject to the rights of the holders of any
series of stock having a preference over the Common Stock as to dividends or
upon liquidation ("Preferred Stock"), special meetings of stockholders, other
than those regulated by statute, may only be called by a majority of the
Directors. Notice of such meeting stating the purpose for which it is called
shall be served personally or by mail, not less than 10 days nor more than 60
days before the date set for such meeting. If mailed, it shall be directed to a
stockholder at his address as it appears on the stock book; but at any meeting
at which all stockholders shall be present, or of which stockholders not present
have waived notice in writing, the giving of notice as above described may be
dispensed with. No business other than that specified in the call for the
meeting shall be transacted at any special meeting of the stockholders. Any
special meeting of stockholders may be postponed by resolution of the Board of
Directors upon public notice given prior to the date previously scheduled for
such special meeting of stockholders.
Sec. 4. VOTING. At all meetings of the stockholders, all questions, the
manner of deciding which is not specifically regulated by statute, shall be
determined by a majority vote of the shares entitled to vote on such matters
present in person or by proxy, other than the election of directors, which shall
be determined by a plurality of votes of the shares entitled to vote on the
election of directors present in person or by proxy.
Sec. 5. CONDUCT OF MEETING. Unless otherwise determined by resolution of
the Board of Directors, the Chairman of the Board (or, in the absence of the
Chairman, the President) shall, or shall designate an appropriate officer of the
Corporation to, call any annual or special meeting of stockholders to order, act
as Chairman of any such meeting of the stockholders, determine the order of
business of any such meeting, and determine the rules of order and procedure to
be followed in the conduct of any such meeting.
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Sec. 6. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(A) ANNUAL MEETINGS OF STOCKHOLDERS.
(1) Nominations of persons for election to the Board of Directors
of the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (a) pursuant to
the Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this ByLaw, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this By-Law.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this By-Law, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
60th day nor earlier than the close of business on the 90th day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (including such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected); (b) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such stockholder,
as they appear on the Corporation's books, and of such beneficial owner and (ii)
the class and number of shares of the Corporation which are owned beneficially
and of record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this By-Law to the contrary, in the event that the number of directors
to be elected to the Board of Directors of the Corporation is increased and
there is no public announcement by the Corporation naming all of the nominees
for director or specifying the size of the increased Board of Directors at least
70 days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this By-Law shall also be considered timely,
but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation.
(B) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a
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special meeting of stockholders at which directors are to be elected pursuant to
the Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this By-Law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-Law. In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
positions) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A)(2) of this By-Law shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the loth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(C) GENERAL.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this By-Law shall be eligible to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this By-Law. Except as otherwise provided by law, the Certificate of
Incorporation or these ByLaws, the Chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this By-Law and, if any proposed
nomination or business is not in compliance with this By-Law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-Law. Nothing in this By-Law shall be deemed to affect any
rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
Sec. 7. RECORD DATE FOR ACTION BY WRITTEN CONSENT. 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 10 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 10 days after the date on which such a request is received,
adopt a resolution fixing the record date. If no record date has been fixed by
the Board of Directors within 10 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 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
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or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office 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.
Sec. 8. INSPECTORS OF WRITTEN CONSENT. In the event of the delivery, in the
manner provided by Section 7, to the Corporation of the requisite written
consent or consents to take corporate action and/or any related revocation or
revocations, the Corporation shall engage nationally recognized independent
inspectors of elections for the purpose of promptly performing 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 7 represent at least the minimum number
of votes that would be necessary to take the corporate action. Nothing contained
in this paragraph 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).
Sec. 9. EFFECTIVENESS OF WRITTEN CONSENT. 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 60 days of the date the earliest dated written consent was
received in accordance with Section 7, 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 Section 7.
Sec. 10. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS. The Board
of Directors by resolution shall appoint one or more inspectors, which inspector
or inspectors may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of stockholders, the Chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and according to the
best of his ability. The inspectors shall have the duties prescribed by law.
The Chairman of the meeting shall fix and announce at the meeting the date
and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting.
ARTICLE II
DIRECTORS
Sec. 1. NUMBER. The affairs of this Corporation shall be managed by a board
of three to eleven directors, as such number shall be fixed by resolution of the
majority of the Board of Directors, who need not be stockholders of the
Corporation and at least one of such directors shall be a citizen of the United
States. Until otherwise determined by the Board of Directors, the exact number
of directors shall be fixed at ten.
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Sec. 2. HOW ELECTED. At each Annual Meeting of Stockholders, the persons
receiving a plurality of the votes cast for the number of directors to be
elected at such meeting shall be elected as directors.
Sec. 3. TERM OF OFFICE; VACANCIES. The Board of Directors shall be divided
into three classes, as nearly equal in number as the then total number of
directors constituting the whole Board permits, with the term of office of one
class expiring each year. Any vacancies in the Board of Directors for any
reason, and any newly created directorships resulting from any increase in the
number of directors may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a quorum. Any
directors so chosen shall hold office until the next election of the class for
which such directors shall have been chosen, and until their successors shall be
elected and qualified. No decrease in the number of directors shall shorten the
term of any incumbent director. Subject to the foregoing, at each annual meeting
of stockholders the successors to the class of directors whose term shall then
expire shall be elected to hold office for a term expiring at the third
succeeding annual meeting.
Sec. 4. DUTIES OF DIRECTORS. The business and affairs of the Corporation
shall be managed under the direction of the Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board of Directors may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these ByLaws required to be exercised or done by the
stockholders.
Sec. 5. DIRECTORS' MEETINGS. Regular meetings of the Board of Directors
shall be held immediately following the Annual Meeting of the Stockholders, and
at such other times as the Board of Directors may determine. Special Meetings of
the Board of Directors may be called by the President at any time, and shall be
called by the President or the Secretary upon the written request of a majority
of the directors.
Sec. 6. NOTICE OF MEETINGS. Notice of meetings, other than the regular
Annual Meetings, shall be given to each director at his business or residence in
writing by hand delivery, first-class or overnight mail or courier service,
telegram, e-mail or facsimile transmission, or orally by telephone. If mailed by
first-class mail, such notice shall be deemed adequately delivered when
deposited in the United States mails so addressed, with postage thereon prepaid,
at least five (5) days before such meeting. If by telegram, overnight mail or
courier service, such notice shall be deemed adequately delivered when the
telegram is delivered to the telegraph company or the notice is delivered to the
overnight mail or courier service company at least two (2) days before such
meeting. If by e-mail or facsimile transmission, telephone or hand delivery,
such notice shall be deemed adequately delivered when the notice is transmitted
at least twelve (12) hours before such meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice of such meeting. At any meeting at
which every member of the Board of Directors shall be present, although held
without notice, any business may be transacted which might have been transacted
if the meeting had been duly called.
Sec. 7. QUORUM. At any meeting of the Board of Directors, a majority of the
members of the Board shall constitute a quorum for the transaction of business;
but in the event of a quorum not being present, a lesser number may adjourn the
meeting to some future time, not more than 15 days later.
Sec. 8. VOTING. At all meetings of the Board of Directors, each director is
to have one vote, irrespective of the number of shares of stock that he may
hold.
Sec. 9. REMOVAL OF DIRECTORS. Any one or more of the directors may be
removed either with or without cause, at any time by a vote of the stockholders
holding two-thirds of the stock, at any Special Meeting called for the purpose.
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ARTICLE III
OFFICERS
Sec. 1. NUMBER. The officers of this Corporation shall be:
1. Chairman of the Board of Directors; if one is elected by the
Board of Directors.
2. President
3. One or more Vice Presidents
4. Secretary
5. Treasurer
The Board of Directors may appoint a Vice-Chairman, Controller, one or more
Assistant Controllers, one or more Assistant Treasurers, one or more Assistant
Secretaries, and such other officers as it may from time to time determine. Two
or more offices (other than those of President and Secretary) may be held by the
same person.
Sec. 2. ELECTION. All officers of the Corporation shall be elected annually
by the Board of Directors at its meeting held immediately after the Meeting of
Stockholders, and shall hold office for the term of one year or until their
successors are duly elected.
Sec. 3. DUTIES OF OFFICERS. The duties and powers of the officers of the
Corporation shall be an follows:
CHAIRMAN OF THE BOARD
The Chairman of the Board of Directors shall be an executive officer of
Corporation, preside at all meetings of the Board of Directors and Stockholders,
and perform such other executive duties as the Board shall designate.
PRESIDENT
The President shall be the chief executive officer and the chief operating
officer of the Corporation and shall have general charge of the business and
affairs of the Corporation, subject, however, to the direction of the Board of
Directors.
He shall present at each Annual Meeting of the Stockholders and Directors a
report on the condition of the Corporation's business.
He shall appoint and remove, employ and discharge, and fix the compensation
of all servants, agents, employees and clerks of the Corporation other than the
duly appointed officers. He may sign and make all contracts, agreements,
obligations, evidences of indebtedness and guarantees in the name of the
Corporation unless otherwise resolved by the Board of Directors.
He may sign all notes, drafts or bills of exchange, warrants or other
orders for the payment of money, unless otherwise resolved by the Board of
Directors.
He shall perform all the duties incident to the position and office of
President, and which are required by law.
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VICE PRESIDENT
Each Vice President shall have such powers and duties as the Board of
Directors may from time to time prescribe. During the absence and inability of
both the Chairman of the Board and the President to render and perform their
duties or exercise their powers, as set forth in these By-Laws or in the acts
under which this Corporation is organized, the same shall be performed and
exercised by the Vice President (or if there is more than one Vice President,
then that one designated by the Board of Directors); and when so acting, he
shall have all the powers and be subject to all the responsibilities hereby
given to or imposed upon such Chairman of the Board and the President.
SECRETARY
The Secretary shall keep the minutes of the Meetings of the Board of
Directors and of the Stockholders in appropriate books. He shall give and serve
all notices of the Corporation, unless otherwise resolved by the Board of
Directors.
He shall be custodian of the records and of the seal, and affix the latter
when required, unless otherwise resolved by the Board of Directors.
He shall attend to all correspondence and perform all duties incident to
the office of Secretary, subject, however, to the direction of the Board of
Directors.
TREASURER
The Treasurer shall have the care and custody of and be responsible for all
the funds and securities of the Corporation, and deposit all such funds in the
name of the Corporation in such bank or banks, trust company or trust companies
or safe deposit vaults as the Board of Directors may designate.
He shall sign, make and endorse in the name of the Corporation all checks,
drafts, warrants and orders for the payment of money, and pay out and dispose of
same and receipt therefor, under the direction of the President or the Board of
Directors.
He shall exhibit at all reasonable times his books and accounts to any
director or stockholder of the Corporation upon application at the office of the
Corporation during business hours.
He shall render a statement of the condition of the finances of the
Corporation at each regular meeting of the Board of Directors, and at such other
times as shall be required of him, and a full financial report at the Annual
meeting of Stockholders.
He shall keep at the office of the Corporation correct books of account of
all its business and transactions and such other books of account as the Board
of Directors may require.
He shall do and perform all duties incident to the office of Treasurer,
subject, however, to the direction of the Board of Directors.
Sec. 4. BOND. Any officer, if required by the Board of Directors, shall
give to the Corporation a bond or other such security for the faithful discharge
of his duties as the Board may direct.
Sec. 5. VACANCIES, HOW FILLED. All vacancies in any office shall be filled
by the Board of Directors without undue delay, at its regular meeting, or at a
meeting specially called for that purpose.
Sec. 6. COMPENSATION OF OFFICERS. The officers shall receive such salary or
compensation as may be determined by the Board of Directors.
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Sec. 7. REMOVAL OF OFFICERS. The Board of Directors may remove any officer,
by a majority vote, at any time with or without cause.
ARTICLE IV
SEAL
Sec. 1. SEAL. The corporate seal shall have enscribed thereon the words
"Corporate Seal", the year of incorporation and around the margin thereof the
words "Cantel Medical Corp. -- Delaware."
ARTICLE V
CERTIFICATES OF STOCK
Sec. 1. DESCRIPTION OF STOCK CERTIFICATES. The certificates of stock shall
be numbered and registered in the order in which they are issued. They shall be
bound in a book and shall be issued in consecutive order therefrom, and in the
margin thereof shall be entered the name of the person owning the shares therein
represented, with the number of shares and the date thereof. Such certificates
shall exhibit the holder's name and the number of shares. They shall be signed
by the President or Vice President and countersigned by the Secretary or
Treasurer and sealed with the seal of the Corporation. In lieu of any of the
aforesaid signatures of the officers of the Corporation or of its seal,
facsimile signatures or seal may be used.
Sec. 2. TRANSFER OF STOCK. The stock of the Corporation shall be assignable
and transferable on the books of the Corporation only by the person in whose
name it appears on the books or his legal representatives. In case of transfer
by attorney, the power of attorney, duly executed and acknowledged, shall be
deposited with the Secretary. In all cases of transfer, the former certificate
must be surrendered up and cancelled before a new certificate is issued unless
other provision is made by resolution by the Board of Directors. Notwithstanding
any provisions of these By-Laws to the contrary, the Corporation by resolution
of the Board of Directors may appoint a transfer agent and/or registrar in
connection with the issuance of its stock and the keeping of the records
relating thereto, upon such terms and conditions as are deemed appropriate by
said Board in its discretion.
ARTICLE VI
DIVIDENDS
Sec. 1. WHEN DECLARED. The Board of Directors may vote to declare cash
dividends from the surplus profits of the Corporation whenever, in their
opinion, the condition of the Corporation's affairs will render it expedient for
such dividends to be declared.
ARTICLE VII
BILLS, NOTES, ETC.
Sec. 1. HOW MADE. All bills payable, notes, checks or other negotiable
instruments of the Corporation shall be made in the name of the Corporation and
shall be signed by the Chairman, President or an Executive Vice President and
countersigned by the Secretary or Treasurer. No officer or agent of
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the Corporation, either singly or jointly with others, shall have the power to
make any bills payable, note, check, draft or warrant or other negotiable
instrument, or endorse the same in the name of the Corporation, or contract or
cause to be contracted any debt or liability in the name or on behalf of the
Corporation, except as herein expressly prescribed and provided, unless
authorized by a resolution of the Board of Directors.
ARTICLE VIII
INDEMNIFICATION AND INSURANCE
Sec. 1. INDEMNIFICATION AND INSURANCE.
(A) 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 (hereinafter a "proceeding"), by
reason of the fact that he or a person of whom he 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, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans maintained or sponsored
by the Corporation, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware 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 expense, liability and loss (including
attorneys, fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) 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, officer, employee or agent and shall inure to
the benefit of his heirs, executors and administrators; provided, however, that
except as provided in paragraph (C) of this By-Law, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors. The right to
indemnification conferred in this By-Law shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances
to be paid by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the claimant requesting such
advance or advances from time to time; provided, however, that if the General
Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his 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 a 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 shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this By-Law or otherwise.
(B) To obtain indemnification under this By-Law, a claimant shall
submit to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is
reasonably necessary to determine whether and to what extent the claimant is
entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this paragraph (B), a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if requested by the claimant,
by Independent Counsel (as hereinafter defined), or (2) if no request is made by
the claimant for a determination by Independent Counsel, (i) by the Board of
Directors by a majority vote of a quorum consisting of
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Disinterested Directors (as hereinafter defined), or (ii) if a quorum of the
Board of Directors consisting of Disinterested Directors is not obtainable or,
even if obtainable, such quorum of Disinterested Directors so directs, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the claimant, or (iii) if a quorum of Disinterested
Directors so directs, by the stockholders of the Corporation. In the event the
determination of entitlement to indemnification is to be made by Independent
Counsel at the request of the claimant, the Independent Counsel shall be
selected by the Board of Directors unless there shall have occurred within two
years prior to the date of the commencement of the action, suit or proceeding
for which indemnification is claimed a "Change of Control" (as defined below),
in which case the Independent Counsel shall be selected by the claimant unless
the claimant shall request that such selection be made by the Board of
Directors. If it is so determined that the claimant is entitled to
indemnification, payment to the claimant shall be made within 10 days after such
determination.
(C) If a claim under paragraph (A) of this By-Law is not paid in full
by the Corporation within thirty days after a written claim pursuant to
paragraph (B) of this By-Law 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 successful in whole or in part, 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 is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the
State of Delaware 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 Counsel or 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 has met the applicable standard of conduct set
forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board of Directors, Independent
Counsel or stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(D) If a determination shall have been made pursuant to paragraph (B)
of this By-Law that the claimant is entitled to indemnification, the Corporation
shall be bound by such determination in any judicial proceeding commenced
pursuant to paragraph (C) of this By-Law.
(E) The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to paragraph (C) of this By-Law that the
procedures and presumptions of this By-Law are not valid, binding and
enforceable and shall stipulate in such proceeding that the Corporation is bound
by all the provisions of this By-Law.
(F) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
By-Law shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this By-Law shall in any
way diminish or adversely affect the rights of any director, officer, employee
or agent of the Corporation hereunder in respect of any occurrence or matter
arising prior to any such repeal or modification.
(G) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware. To the extent that
the Corporation maintains any policy or policies providing
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such insurance, each such director or officer, and each such agent or employee
to which rights to indemnification have been granted as provided in paragraph
(H) of this By-Law, shall be covered by such policy or policies in accordance
with its or their terms to the maximum extent of the coverage thereunder for any
such director, officer, employee or agent.
(H) The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and rights to be paid
by the Corporation the expenses incurred in defending any proceeding in advance
of its final disposition, to any employee or agent of the Corporation to the
fullest extent of the provisions of this By-Law with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
(I) If any provision or provisions of this By-Law shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (1) the validity,
legality and enforceability of the remaining provisions of this By-Law
(including, without limitation, each portion of any paragraph of this By-Law
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (2) to the fullest extent possible, the
provisions of this By-Law (including, without limitation, each such portion of
any paragraph of this By-Law containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
(i) For purposes of this By-Law:
(1) "Disinterested Director" means a director of the
Corporation who is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
(2) "Independent Counsel" means a law firm, a member of
a law firm, or an independent practitioner, that is experienced in matters of
corporation law and shall include any person who, under the applicable standards
of professional conduct then prevailing, would not have a conflict of interest
in representing either the Corporation or the claimant in an action to determine
the claimant's rights under this By-Law.
(3) "Change of Control" means:
(a) The acquisition by any individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 30% or more of either (i) the then
outstanding shares of common stock of the Corporation (the "Outstanding Common
Stock") or (ii) the combined voting power of the then outstanding voting
securities of the Corporation entitled to vote generally in the election of
directors (the "Outstanding Voting Securities"); provided, however, that for
purposes of this subsection (a), the following acquisitions shall not constitute
a Change of Control: (i) any acquisition directly from the Corporation, (ii) any
acquisition by the Corporation, (iii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Corporation or any
corporation controlled by the Corporation or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses (i), (ii) and
(iii) of subsection (c); or
(b) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Corporation's stockholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal
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of directors or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board; or
(c) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Corporation (a "Business Combination"), in each case, unless,
following such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Common Stock and Outstanding Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more than
50% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Corporation or all or
substantially all of the Corporation's assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Common Stock
and Outstanding Voting Securities, as the case may be, (ii) no Person (excluding
any corporation resulting from such Business Combination or any employee benefit
plan (or related trust) of the Corporation or such corporation resulting from
such Business Combination) beneficially owns, directly or indirectly, 30% or
more of, respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined voting
power of the then outstanding voting securities of such corporation except to
the extent that such ownership existed prior to the Business Combination and
(iii) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(d) Approval by the stockholders of the
Corporation of a complete liquidation or dissolution of the Corporation.
(K) Any notice, request or other communication required or permitted to
be given to the Corporation under this By-Law shall be in writing and either
delivered in person or sent by telecopy, telex, telegram, overnight mail or
courier service, or certified or registered mail, postage prepaid, return
receipt requested, to the Secretary of the Corporation and shall be effective
only upon receipt by the Secretary.
ARTICLE IX
AMENDMENTS
Sec. 1. HOW AMENDED. These By-Laws may be altered, amended, repealed or
added to by an affirmative vote of the stockholders representing a majority of
the whole capital stock entitled to vote at an Annual Meeting or at a Special
Meeting called for that purpose provided that written notice shall have been
sent to each stockholder or mailed to him at his post office address of known,
at least 10 days before the date fixed for such meeting. The notice shall set
forth the alterations, amendments or changes which are proposed to be made in
such By-Laws or in lieu thereof shall set forth a brief summary of the changes
to be effected therein. If, however, all the stockholders shall be present at
any regular or Special Meeting, these By-Laws may be amended by a unanimous vote
without any previous notice. Notwithstanding the above, these By-Laws may be
altered, amended, repealed or added to by the affirmative vote taken at a
regular or Special Meeting of the Board of Directors.
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ARTICLE X
MISCELLANEOUS
Sec. 1. VARIATIONS IN PRONOUNS. All pronouns and any variations thereof
refer to the masculine, feminine or neither, and singular or plural, as the
identity of the person or persons may require.
Sec. 2. FISCAL YEAR. The fiscal year of the Corporation shall start on such
date as the Board of Directors shall from time to time prescribe.
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