BY-LAWS OF
APOLLO GENETICS, INC.
Adopted by the Board of Directors on November 6, 1996
ARTICLE I
STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of stockholders shall be
held at the principal office of the corporation or at such other place as may
be named in the notice.
SECTION 2. ANNUAL MEETING. The annual meeting of stockholders for the
election of directors and the transaction of such other business as may
properly come before the meeting shall be held on such date and at such hour
and place as the directors or an officer designated by the directors may
determine. If the annual meeting is not held on the date designated
therefor, the directors shall cause the meeting to be held as soon thereafter
as convenient.
SECTION 3. SPECIAL MEETINGS. Special meetings of the stockholders may
be called at any time by the President or a majority of the Board of
Directors.
SECTION 4. NOTICE OF MEETINGS. Except where some other notice is
required by law, written notice of each meeting of stockholders, stating the
place, date and hour thereof and the purposes for which the meeting is
called, shall be given by the Secretary under the direction of the Board of
Directors or the President, not less than ten nor more than sixty days before
the date fixed for such meeting, to each stockholder of record entitled to
vote at such meeting. Notice shall be given personally to each stockholder or
left at his or her residence or usual place of business or mailed, postage
prepaid, and addressed to the stockholder at his or her address as it appears
upon the records of the corporation. In case of the death, absence,
incapacity or refusal of the Secretary, such notice may be given by a person
designated either by the Secretary or by the person or persons calling the
meeting or by the Board of Directors. A waiver of such notice in writing,
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent to such notice.
Attendance of a person at a meeting of stockholders shall constitute a waiver
of notice of such meeting, except when the stockholder attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any
written waiver of notice. Except as required by statute, notice of any
adjourned meeting of the stockholders shall not be required.
SECTION 5. RECORD DATE. The Board of Directors may fix in advance a
record date for the determination of the stockholders entitled to notice of
or to vote at any meeting of stockholders, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action. Such record date shall
not be more than 60 nor less than 10 days before the date of such meeting,
nor more than 60 days before any other action to which such record date
relates. If no record date is fixed, 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 before the day on which notice
is given, or, if notice is waived, at the close of business on the day before
the day on which the meeting is held, and the record date for determining
stockholders for any other purpose shall be at the close of business on the
day on which the Board of Directors adopts the resolution relating to such
purpose. 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 6. NOMINATION OF DIRECTORS. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors at any annual or special meeting of stockholders. Nominations of
persons for election as directors may be made only by or at the direction of
the Board of Directors, or by any stockholder entitled to vote for the
election of directors at the meeting in compliance with the notice procedures
set forth in this Section 6. Such nominations, other than those made by or
at the direction of the Board of Directors, shall be made pursuant to timely
notice in writing to the President or the Secretary. 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 45 days before
the meeting; PROVIDED, HOWEVER, that if less than 60 days' notice or prior
public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 15th 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 shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or re-election as a
director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of capital stock of the corporation that are
beneficially owned by the person and (iv) any other information relating to
the person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended, or any successor provision thereto; and (b)
as to the stockholder giving the notice, (i) the name and record address of
such stockholder and (ii) the class and number of shares of capital stock of
the corporation that are beneficially owned by such stockholder.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if the chairman should so determine, he or she shall
so declare to the meeting and the defective nomination shall be disregarded.
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SECTION 7. ADVANCE NOTICE OF BUSINESS AT ANNUAL MEETINGS. At any annual
meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be brought properly before
an annual meeting, business must be either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the
President or the Board of Directors, (b) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (c) properly
brought before the meeting by a stockholder. In addition to any other
applicable requirements, for business to be brought properly before an annual
meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the President or the Secretary. 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 45 days before
the meeting; PROVIDED, HOWEVER, that if less than 60 days' notice or prior
public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 15th day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made. A stockholder's notice shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a
brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting,
(ii) the name and record address of the stockholder proposing such business,
(iii) the class and number of shares of the corporation that are beneficially
owned by the stockholder and (iv) any material interest of the stockholder in
such business.
Notwithstanding anything in these by-laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 7, PROVIDED, HOWEVER, that nothing in
this Section 7 shall be deemed to preclude discussion by any stockholder of
any business properly brought before the annual meeting in accordance with
said procedure.
The chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the foregoing procedure, and if the chairman
should so determine, he or she shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
SECTION 8. VOTING LIST. The officer who has charge of the stock ledger
of the corporation shall make or have made, at least 10 days before every
meeting of stockholders, a complete list of the stockholders, arranged in
alphabetical order and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder for any purpose germane to the
meeting, during ordinary business hours, for a period of at least 10 days
before the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or if
not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote at any meeting of
stockholders.
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SECTION 9. QUORUM OF STOCKHOLDERS. At any meeting of the stockholders,
the holders of a majority in interest of all stock issued and outstanding and
entitled to vote upon a question to be considered at the meeting, present in
person or represented by proxy, shall constitute a quorum for the
consideration of such question; but, in the absence of a quorum, a smaller
group may adjourn any meeting from time to time. When a quorum is present at
any meeting, a majority of the votes properly cast shall, except where a
different vote is required by law, by the Certificate of Incorporation or by
these by-laws, decide any question brought before such meeting. Any election
by stockholders shall be determined by a plurality of the vote cast by the
stockholders entitled to vote at the election.
SECTION 10. PROXIES AND VOTING. Unless otherwise provided in the
Certificate of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of
the capital stock held of record by such stockholder, but no proxy shall be
voted or acted upon after three years from its date, unless said proxy
provides for a longer period. Persons holding stock in a fiduciary capacity
shall be entitled to vote the shares so held, and persons whose stock is
pledged shall be entitled to vote unless in the transfer by the pledgor on
the books of the corporation the pledgee shall have been expressly empowered
to vote thereon, in which case only the pledgee or the pledgee's proxy may
represent said stock and vote thereon. Shares of the capital stock of the
corporation belonging to the corporation or to another corporation, a
majority of whose shares entitled to vote in the election of directors is
owned by the corporation, shall neither be entitled to vote nor be counted
for quorum purposes.
SECTION 11. CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order specified and if
present and acting: the President, a Vice-President (and, in the event there
be more than one person in any such office, in the order of their seniority),
or, if none of the foregoing is in office and present and acting, a chairman
designated by the Board of Directors or, in the absence of such designation,
a chairman chosen by the stockholders at the meeting. The Secretary of the
corporation, if present, or an Assistant Secretary, shall act as secretary of
every meeting, but if neither the Secretary nor an Assistant Secretary is
present the chairman of the meeting shall appoint a secretary of the meeting.
The Board of Directors may adopt such rules, regulations and procedures
for the conduct of the meeting of stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations as adopted
by the Board of Directors, the chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures and to do
all such acts as, in the judgement of such chairman, are appropriate for the
proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the chairman of
the meeting, may include, without limitation, (i) the establishment of an
agenda or order of business for the meeting, (ii) rules and procedures for
maintaining order at the meeting and the safety of those present, (iii)
limitations on attendance at or participation in the meeting to stockholders
of record of the corporation, their duly authorized and constituted proxies
or such other persons as the chairman of the meeting
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shall determine, (iv) restrictions on entry to the meeting after the time
fixed for the commencement thereof, and (v) limitations on the time allotted
to questions or comments by participants. Unless and to the extent
determined by the Board of Directors or the chairman of the meeting, meetings
of stockholders shall not be required to be held in accordance with the rules
of parliamentary procedure.
ARTICLE II
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation that are not by law required to
be exercised by the stockholders. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
SECTION 2. NUMBER; ELECTION; TENURE AND QUALIFICATION. Subject to any
restrictions contained in the Certificate of Incorporation, the number of
directors that shall constitute the whole Board shall be fixed by resolution
of the Board of Directors but in no event shall be less than one. The
directors shall be elected in the manner provided in the Certificate of
Incorporation, by such stockholders as have the right to vote thereon. The
number of directors may be increased or decreased by action of the Board of
Directors. Directors need not be stockholders of the corporation.
SECTION 3. ENLARGEMENT OF THE BOARD. Subject to any restrictions
contained in the Certificate of Incorporation, the number of the Board of
Directors may be increased at any time, such increase to be effective
immediately unless otherwise specified in the resolution, by vote of a
majority of the directors then in office.
SECTION 4. VACANCIES. Unless and until filled by the stockholders and
except as otherwise determined by the Board of Directors in establishing a
series of Preferred Stock as to directors elected by the holders of such
series, any vacancy in the Board of Directors, however occurring, including a
vacancy resulting from an enlargement of the Board and an unfilled vacancy
resulting from the removal of any director, may be filled by vote of a
majority of the directors then in office although less than a quorum or the
full Board, or by the sole remaining director. Each director so chosen to
fill a vacancy shall serve for a term determined in the manner provided in
the Certificate of Incorporation. When one or more directors shall resign
from the Board, effective at a future date, a majority of the directors then
in office, including those who have so resigned, shall have the power to fill
such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective. If at any time there are
no directors in office, then an election of directors may be held in
accordance with the General Corporation Law of the State of Delaware.
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SECTION 5. RESIGNATION. Any director may resign at any time upon
written notice to the corporation. Such resignation shall take effect at the
time specified therein, or if no time is specified, at the time of its
receipt by the President or the Secretary.
SECTION 6. REMOVAL. Directors may be removed from office only as
provided in the Certificate of Incorporation. The vacancy or vacancies
created by the removal of a director may be filled by the stockholders at the
meeting held for the purpose of removal or, if not so filled, by the
directors in the manner provided in Section 4 of this Article II.
SECTION 7. COMMITTEES. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole Board of Directors, designate
one or more committees, each committee to consist of one or more directors of
the corporation. The Board of Directors may designate one or more directors
as alternate members of any committee to replace any absent or disqualified
member at any meeting of the 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 such member or
members constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of such absent or
disqualified member. The Board of Directors shall have the power to change
the members of any such committee at any time, to fill vacancies therein and
to discharge any such committee, either with or without cause, at any time.
Any such committee, to the extent permitted by law and to the extent
provided in a resolution of the Board of Directors or in these by-laws, shall
have and may exercise all the powers and authority of the Board of Directors
in the management of the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all papers that may
require it.
A majority of all the members of any such committee may fix its rules of
procedure, determine its action and fix the time and place, whether within or
without the State of Delaware, of its meetings and specify what notice
thereof, if any, shall be given, unless the Board of Directors shall
otherwise by resolution provide. Each committee shall keep regular minutes
of its meetings and make such reports as the Board of Directors may from time
to time request.
SECTION 8. MEETINGS OF THE BOARD OF DIRECTORS. Regular meetings of the
Board of Directors may be held without call or formal notice at such places
either within or without the State of Delaware and at such times as the Board
may by vote from time to time determine. A regular meeting of the Board of
Directors may be held without call or formal notice immediately after and at
the same place as the annual meeting of the stockholders, or any special
meeting of the stockholders at which a Board of Directors is elected.
Special meetings of the Board of Directors may be held at any place
either within or without the State of Delaware at any time when called by the
President, the Secretary or two or more directors. Reasonable notice of the
time and place of a special meeting shall be given to each director unless
such notice is waived by attendance or by written waiver in the manner
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provided in these by-laws for waiver of notice by stockholders. Notice may
be given by, or by a person designated by, the Secretary, the person or
persons calling the meeting, or the Board of Directors. No notice of any
adjourned meeting of the Board of Directors shall be required. In any case
it shall be deemed sufficient notice to a director to send notice by mail at
least seventy-two hours, or by telegram or fax at least forty-eight hours,
before the meeting, addressed to such director at his or her usual or last
known business or home address.
Directors or members of any committee may participate in a meeting of the
Board of Directors or of such 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 participation by such means shall
constitute presence in person at such meeting.
SECTION 9. QUORUM AND VOTING. A majority of the total number of
directors shall constitute a quorum, except that when a vacancy or vacancies
exist in the Board, a majority of the directors then in office (but not less
than one-third of the total number of the directors) shall constitute a
quorum. A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting from time to time. 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, except where a different vote is required
by law, by the Certificate of Incorporation or by these by-laws.
SECTION 10. COMPENSATION. The Board of Directors may fix fees for
their services and for their membership on committees, and expenses of
attendance may be allowed for attendance at each meeting. Nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity, as an officer, agent or otherwise, and
receiving compensation therefor.
SECTION 11. ACTION WITHOUT 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 and without notice if a
written consent thereto is signed by all members of the Board of Directors or
of such committee, as the case may be, and such written consent is filed with
the minutes of proceedings of the Board of Directors or of such committee.
ARTICLE III
OFFICERS
SECTION 1. TITLES. The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine, who may include without
limitation a Chairman of the Board, a Vice-Chairman of the Board and one or
more Vice-Presidents, Assistant Treasurers or Assistant Secretaries.
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SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
shall be elected annually by the Board of Directors at its first meeting
following the annual meeting of the stockholders. Each officer shall hold
office until his or her successor is elected and qualified, unless a
different term is specified in the vote electing such officer, or until his
or her earlier death, resignation or removal.
SECTION 3. QUALIFICATION. Unless otherwise provided by resolution of
the Board of Directors, no officer, other than the Chairman or Vice-Chairman
of the Board, need be a director. No officer need be a stockholder. Any
number of offices may be held by the same person, as the directors shall
determine.
SECTION 4. REMOVAL. Any officer may be removed, with or without cause,
at any time, by resolution adopted by the Board of Directors.
SECTION 5. RESIGNATION. Any officer may resign by delivering a written
resignation to the corporation at its principal office or to the the
President or the Secretary. Such resignation shall be effective upon receipt
or at such later time as may be specified therein.
SECTION 6. VACANCIES. The Board of Directors may at any time fill any
vacancy occurring in any office for the unexpired portion of the term and may
leave unfilled for such period as it may determine any office other than
those of President, Treasurer and Secretary.
SECTION 7. POWERS AND DUTIES. The officers of the corporation shall
have such powers and perform such duties as are specified herein and as may
be conferred upon or assigned to them by the Board of Directors and shall
have such additional powers and duties as are incident to their office except
to the extent that resolutions of the Board of Directors are inconsistent
therewith.
SECTION 8. PRESIDENT AND VICE-PRESIDENTS. Except to the extent that
such duties are assigned by the Board of Directors to the Chairman of the
Board, or in the absence of the Chairman or in the event of his or her
inability or refusal to act, the President shall be the chief executive
officer of the corporation and shall have general and active management of
the business of the corporation and general supervision of its officers,
agents and employees, and shall see that all orders and resolutions of the
Board of Directors are carried into effect. The President shall preside at
each meeting of the stockholders and the Board of Directors unless a Chairman
or Vice-Chairman of the Board is elected by the Board and is assigned the
duty of presiding at such meeting.
The Board of Directors may assign to any Vice-President the title of
Executive Vice-President, Senior Vice-President or any other title selected
by the Board of Directors. In the absence of the President or in the event
of his or her inability or refusal to act, the duties of the President shall
be performed by the Executive Vice-President, if any, Senior Vice President,
if any, or Vice President, if any, in that order (and, in the event there be
more than
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one person in any such office, in the order of their seniority), and when so
acting, such officer shall have all the powers of and be subject to all the
restrictions upon the President.
SECTION 9. SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall
attend all meetings of the Board of Directors and of the stockholders and
record all the proceedings of such meetings in a book to be kept for that
purpose, shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, shall maintain a
stock ledger and prepare lists of stockholders and their addresses as
required and shall have custody of the corporate seal, which the Secretary or
any Assistant Secretary shall have authority to affix to any instrument
requiring it and attest by any of their signatures. The Board of Directors
may give general authority to any other officer to affix and attest the seal
of the corporation.
Any Assistant Secretary may, in the absence of the Secretary or in the
event of the Secretary's inability or refusal to act, perform the duties and
exercise the powers of the Secretary.
SECTION 10. TREASURER AND ASSISTANT TREASURERS. The Treasurer shall
have the custody of the corporate funds and securities, shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the corporation in such depositories as may be
designated by or pursuant to resolution of the Board of Directors. The
Treasurer shall disburse the funds of the corporation as may be ordered by
the Board of Directors or the President, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors,
at its regular meetings or whenever they may require it, an account of all
transactions and of the financial condition of the corporation.
Any Assistant Treasurer may, in the absence of the Treasurer or in the
event of his or her inability or refusal to act, perform the duties and
exercise the powers of the Treasurer.
SECTION 11. BONDED OFFICERS. The Board of Directors may require any
officer to give the corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors upon such terms
and conditions as the Board of Directors may specify, including without
limitation a bond for the faithful performance of the duties of such officer
and for the restoration to the corporation of all property in his or her
possession or control belonging to the corporation.
SECTION 12. SALARIES. Officers of the corporation shall be entitled to
such salaries, compensation or reimbursement as shall be fixed or allowed
from time to time by the Board of Directors or any committee thereof
appointed for the purpose.
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ARTICLE IV
STOCK
SECTION 1. CERTIFICATES OF STOCK. One or more stock certificates,
signed by the Chairman or Vice-Chairman of the Board of Directors or by the
President or a Vice-President and by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary, shall be issued to each
stockholder certifying the number of shares of the corporation's capital
stock owned by the stockholder. Any or all signatures on any such
certificate may be facsimiles. In case any officer, transfer agent or
registrar who shall have signed or whose facsimile signature shall have been
placed upon a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Each certificate for shares of stock that are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, the by-laws,
applicable securities laws, or any agreement among any number of stockholders
or among such holders and the corporation shall have conspicuously noted on
the face or back of the certificate either the full text of the restriction
or a statement of the existence of such restriction.
SECTION 2. TRANSFERS OF SHARES OF STOCK. Subject to the restrictions,
if any, stated or noted on the stock certificates, shares of stock may be
transferred on the books of the corporation by the surrender to the
corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or the authenticity of
signature as the corporation or its transfer agent may reasonably require.
The corporation shall be entitled to treat the record holder of stock as
shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to vote with respect to that stock,
regardless of any transfer, pledge or other disposition of that stock, until
the shares have been transferred on the books of the corporation in
accordance with the requirements of these by-laws.
SECTION 3. LOST CERTIFICATES. A new stock certificate may be issued in
the place of any certificate theretofore issued by the corporation and
alleged to have been lost, stolen, destroyed or mutilated, upon such terms in
conformity with law as the Board of Directors shall prescribe. The directors
may, in their discretion, require the owner of the lost, stolen, destroyed or
mutilated certificate, or the owner's legal representatives, to give the
corporation a bond, in such sum as they may direct, to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss, theft, destruction or mutilation of any such certificate, or
the issuance of any such new certificate.
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SECTION 4. FRACTIONAL SHARE INTERESTS. The corporation may, but shall
not be required to, issue fractions of a share. If the corporation does not
issue fractions of a share, it shall (i) arrange for the disposition of
fractional interests by those entitled thereto, (ii) pay in cash the fair
value of fractions of a share as of the time when those entitled to receive
such fractions are determined, or (iii) issue scrip or warrants in registered
or bearer form, which shall entitle the holder to receive a certificate for a
full share upon the surrender of such scrip or warrants aggregating a full
share. A certificate for a fractional share shall, but scrip or warrants
shall not unless otherwise provided therein, entitle the holder to exercise
voting rights, to receive dividends thereon, and to participate in any of the
assets of the corporation in the event of liquidation. The Board of
Directors may cause scrip or warrants to be issued subject to the conditions
that they shall become void if not exchanged for certificates representing
full shares before a specified date, or subject to the conditions that the
shares for which scrip or warrants are exchangeable may be sold by the
corporation and the proceeds thereof distributed to the holders of scrip or
warrants, or subject to any other conditions that the Board of Directors may
impose.
SECTION 5. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor, at any regular or special meeting, declare dividends upon the
capital stock of the corporation as and when they deem expedient.
ARTICLE V
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the extent legally permissible, indemnify each
person who may serve or who has served at any time as a director or officer
of the corporation or of any of its subsidiaries, or who at the request of
the corporation may serve or at any time has served as a director, officer or
trustee of, or in a similar capacity with, another organization or an
employee benefit plan, against all expenses and liabilities (including
counsel fees, judgments, fines, excise taxes, penalties and amounts payable
in settlements) reasonably incurred by or imposed upon such person in
connection with any threatened, pending or completed action, suit or other
proceeding, whether civil, criminal, administrative or investigative, in
which he may become involved by reason of his serving or having served in
such capacity (other than a proceeding voluntarily initiated by such person
unless he is successful on the merits, the proceeding was authorized by the
corporation or the proceeding seeks a declaratory judgment regarding his own
conduct); provided that no indemnification shall be provided for any such
person with respect to any matter as to which he shall have been finally
adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interests of the
corporation or, to the extent such matter relates to service with respect to
any employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan; and provided, further, that as
to any matter disposed of by a compromise payment by such person, pursuant to
a consent
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decree or otherwise, the payment and indemnification thereof have been
approved by the corporation, which approval shall not unreasonably be
withheld, or by a court of competent jurisdiction. Such indemnification shall
include payment by the corporation of expenses incurred in defending a civil
or criminal action or proceeding in advance of the final disposition of such
action or proceeding, upon receipt of an undertaking by the person
indemnified to repay such payment if he shall be adjudicated to be not
entitled to indemnification under this article, which undertaking may be
accepted without regard to the financial ability of such person to make
repayment.
A person entitled to indemnification hereunder whose duties include
service or responsibilities as a fiduciary with respect to a subsidiary or
other organization shall be deemed to have acted in good faith in the
reasonable belief that his action was in the best interests of the
corporation if he acted in good faith in the reasonable belief that his
action was in the best interests of such subsidiary or organization or of the
participants or beneficiaries of, or other persons with interests in, such
subsidiary or organization to whom he had a fiduciary duty.
Where indemnification hereunder requires authorization or approval by
the corporation, such authorization or approval shall be conclusively deemed
to have been obtained, and in any case where a director of the corporation
approves the payment of indemnification, such director shall be wholly
protected, if:
1. the payment has been approved or ratified (l) by a majority
vote of a quorum of the directors consisting of persons who are not at that
time parties to the proceeding, (2) by a majority vote of a committee of two
or more directors who are not at that time parties to the proceeding and are
selected for this purpose by the full board (in which selection directors who
are parties may participate), or (3) by a majority vote of a quorum of the
outstanding shares of stock of all classes entitled to vote for directors,
voting as a single class, which quorum shall consist of stockholders who are
not at that time parties to the proceeding; or
2. the action is taken in reliance upon the opinion of independent
legal counsel (who may be counsel to the corporation) appointed for the
purpose by vote of the directors or in the manner specified in clauses (l),
(2) or (3) of subparagraph (i); or
3. the payment is approved by a court of competent jurisdiction; or
4. the directors have otherwise acted in accordance with the
standard of conduct set forth in the Delaware General Corporation Law.
Any indemnification or advance of expenses under this article shall be
paid promptly, and in any event within 30 days, after the receipt by the
corporation of a written request therefor from the person to be indemnified,
unless with respect to a claim for indemnification the corporation shall have
determined that the person is not entitled to indemnification. If
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the corporation denies the request or if payment is not made within such 30
day period, the person seeking to be indemnified may at any time thereafter
seek to enforce his rights hereunder in a court of competent jurisdiction
and, if successful in whole or in part, he shall be entitled also to
indemnification for the expenses of prosecuting such action. Unless
otherwise provided by law, the burden of proving that the person is not
entitled to indemnification shall be on the corporation.
The right of indemnification under this article shall be a contract
right inuring to the benefit of the directors, officers and other persons
entitled to be indemnified hereunder and no amendment or repeal of this
article shall adversely affect any right of such director, officer or other
person existing at the time of such amendment or repeal.
The indemnification provided hereunder shall inure to the benefit of the
heirs, executors and administrators of a director, officer or other person
entitled to indemnification hereunder. The indemnification provided
hereunder may, to the extent authorized by the corporation, apply to the
directors, officers and other persons associated with constituent
corporations that have been merged into or consolidated with the corporation
who would have been entitled to indemnification hereunder had they served in
such capacity with or at the request of the corporation.
The right of indemnification under this article shall be in addition to
and not exclusive of all other rights to which such director or officer or
other persons may be entitled. Nothing contained in this article shall
affect any rights to indemnification to which corporation employees or agents
other than directors and officers and other persons entitled to
indemnification hereunder may be entitled by contract or otherwise under law.
The corporation shall have power to 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 as a
director, officer, trustee, employee or agent of another corporation,
partnership, joint venture, trust, other enterprise or employee benefit plan
against any liability asserted against such person and incurred by such
person in any such capacity or arising out of such person's status as such,
whether or not the corporation would have the power to indemnify such person
against such liability under the provisions of the General Corporation Law of
the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
SECTION 1. FISCAL YEAR. Except as otherwise designated from time to
time by the Board of Directors, the fiscal year of the corporation shall
begin on the first day of January and end on the last day of December.
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SECTION 2. CORPORATE SEAL. The corporate seal shall be in such form as
shall be approved by the Board of Directors. The Secretary shall be the
custodian of the seal, and a duplicate seal may be kept and used by each
Assistant Secretary and by any other officer the Board of Directors may
authorize.
SECTION 3. CERTIFICATE OF INCORPORATION. All references in these
by-laws to the Certificate of Incorporation shall be deemed to refer to the
Certificate of Incorporation of the corporation, as in effect from time to
time.
SECTION 4. EXECUTION OF INSTRUMENTS. The President, the Treasurer and
the Secretary shall have power to execute and deliver on behalf and in the
name of the corporation any instrument requiring the signature of an officer
of the corporation, including deeds, contracts, mortgages, bonds, notes,
debentures, checks, drafts and other orders for the payment of money. In
addition, the Board of Directors, the President, the Treasurer and the
Secretary may expressly delegate such powers to any other officer or agent of
the corporation.
SECTION 5. VOTING OF SECURITIES. The President, the Treasurer and the
Secretary, and each other person authorized by the Board of Directors, each
acting singly, may waive notice of, and act as, or appoint any person or
persons to act as, proxy or attorney-in-fact for this corporation (with or
without power of substitution) at any meeting of stockholders or owners of
other interests of any other corporation or organization the securities of
which may be held by this corporation. In addition, the Board of Directors,
the President and the Treasurer may expressly delegate such powers to any
other officer or agent of the corporation.
SECTION 6. EVIDENCE OF AUTHORITY. A certificate by the Secretary, an
Assistant Secretary or a temporary secretary as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall, as to all persons who rely on the certificate in good
faith, be conclusive evidence of that action.
SECTION 7. TRANSACTIONS WITH INTERESTED PARTIES. No contract or
transaction between the corporation and one or more of the directors or
officers, or between the corporation and any other corporation, partnership,
association or other organization in which one or more of the directors or
officers are directors or officers or have a financial interest, shall be
void or voidable solely for that reason or solely because the director or
officer is present at or participates in the meeting of the Board of
Directors or a committee of the Board of Directors that authorizes the
contract or transaction or solely because the vote of any such director is
counted for such purpose, if:
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(1) The material facts as to the relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors
or such committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than
a quorum; or
(2) The material facts as to the 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
(3) The contract or transaction is fair to the corporation as of the
time it is authorized, approved or ratified by the Board of Directors, a
committee of the Board of Directors or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
that authorizes the contract or transaction.
SECTION 8. BOOKS AND RECORDS. The books and records of the corporation
shall be kept at such places within or without the State of Delaware as the
Board of Directors may from time to time determine.
ARTICLE VII
AMENDMENTS
SECTION 1. BY THE BOARD OF DIRECTORS. These by-laws may be altered,
amended or repealed or new by-laws may be adopted by the affirmative vote of
a majority of the directors present at any regular or special meeting of the
Board of Directors at which a quorum is present.
SECTION 2. BY THE STOCKHOLDERS. These by-laws may be altered, amended
or repealed or new by-laws may be adopted by the affirmative vote of the
holders of a majority of votes properly cast at any regular meeting of
stockholders, or at any special meeting of stockholders, provided notice of
such alteration, amendment, repeal or adoption of new by-laws shall have been
stated in the notice of such special meeting.
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