Exhibit 3.2
BY-LAWS
OF
DEPUY, INC.
(a Delaware corporation, hereinafter called the "Corporation")
ARTICLE I.
OFFICES
SECTION 1. Registered Office. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
SECTION 2. Annual Meetings. The Annual Meetings of Stockholders shall be
held on such date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting.
Written notice of the Annual Meeting stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting not
less than ten nor more than sixty days before the date of the meeting.
SECTION 3. Special Meetings. Subject to the rights of the holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, special meetings of stockholders of the
Corporation may be called only by the Board of Directors, the Chairman of the
Board or the President. Written notice of a Special Meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the
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meeting is called shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting.
SECTION 4. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
entitled to vote at the meeting.
SECTION 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, any question brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Each stockholder represented at
a meeting of stockholders shall be entitled to cast one vote for each share of
the capital stock entitled to vote thereat held by such stockholder. At each
election of directors, every stockholder entitled to vote at such election shall
have the right to vote the numbers of shares owned by him for as many persons as
there are directors to be elected at that time. Such votes may be cast in
person or by proxy but no proxy shall be voted on or after three years from its
date, unless such proxy provides for a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in his discretion, may require that any votes cast at such meeting
shall be cast by written ballot.
SECTION 6. Written Consent in Lieu of Meeting. Any action required or
permitted to be taken by the stockholders of the Corporation may be effected at
a duly called annual or special meeting or by the written consent of more than
fifty percent (50%) of the Common Stock entitled to vote on such action.
SECTION 7. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, 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 ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
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produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
SECTION 8. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine (a) the stock
ledger, (b) the list required by Section 7 of this Article II or (c) the books
of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
SECTION 9. Conduct of Meetings of Stockholders. Meetings of stockholders
shall generally follow reasonable and fair procedures. Subject to the
foregoing, the conduct of any meeting and the determination of procedures and
rules shall be within the absolute discretion of the Chairman, and there shall
be no appeal from any ruling of the Chairman with respect to procedures or
rules. Accordingly, in any meeting of stockholders or part thereof, the
Chairman shall have the absolute power to determine appropriate rules or to
dispense with theretofore prevailing rules. The Chairman of the Board (or in
his absence the Vice Chairman, if any, or, if there is no Vice Chairman, a
Director designated by the Chairman) shall serve as Chairman of the Meeting and
preside at the meeting. Without limiting the foregoing, the following rules
shall apply:
1. Within his sole discretion, the Chairman of the meeting may
adjourn such meeting by declaring such meeting adjourned. Upon his doing
so, the meeting shall be immediately adjourned.
2. The Chairman may ask or require that anyone not a bona fide
stockholder or proxy leave the meeting.
3. A resolution or motion shall be considered for vote only if
proposed by a stockholder or duly authorized proxy, and seconded by an
individual, who is a stockholder or a duly authorized proxy, other than the
individual who proposed the resolution or motion. The Chairman may propose
any motion for vote.
4. The Chairman of the meeting may impose any reasonable limits
with respect to participation in the meeting by stockholders, including,
but not limited to, limits on the amount of time at the meeting taken up by
the remarks or questions of any stockholder, limits on the numbers of
questions per stockholder, and limits as to the subject matter and timing
of questions and remarks by stockholders.
SECTION 10. Advance Notice of Stockholder-Proposed Business at any
Meeting of Stockholders. To be properly brought before any meeting of the
stockholders, business must be either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors,
(b) otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements, including
(without limitation) requirements imposed by federal securities laws pertaining
to proxies, for business to be
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properly brought before any meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation, at least thirty (30) days
prior to the meeting. A stockholder's notice to the Secretary shall set forth
as to each matter the stockholder proposes to bring before any meeting of the
stockholders (i) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting,
(ii) the name and record address of the stockholder proposing such business,
(iii) the class and number of shares of the Corporation which 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 any meeting of the stockholders except in accordance with
the procedures set forth in this Article II, Section 10, provided, however, that
nothing in this Article II, Section 10 shall be deemed to preclude discussion by
any stockholder as to any business properly brought before any meeting.
The Chairman of the Board of the Corporation shall, if the facts warrant,
determine and declare at any meeting of the stockholders that business was not
properly brought before the meeting in accordance with the provisions of this
Article II, Section 10, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted.
ARTICLE III.
DIRECTORS
SECTION 1. Number and Qualification of Directors. 1. The Board of
Directors shall consist of not less than three nor more than fifteen members,
the exact number of which shall initially be fixed by the Incorporator and
thereafter from time to time by resolution of the Board of Directors. Except as
provided in Section 3 of this Article, directors shall be elected by a plurality
of the votes cast at Annual Meetings of Stockholders, and each director so
elected shall hold office until the Annual Meeting for the year in which his
term expires and until his successor is duly elected and qualified, or until his
earlier death, resignation, retirement, disqualification or removal. Any
director may resign at any time upon notice to the Corporation. Directors need
not be stockholders.
2. Unless waived by the Board of Directors, no person not already a
Director shall be eligible to be elected to or serve as a Director unless such
person's candidacy shall have been notified to the Board of Directors at least
thirty (30) days before initiation of solicitation to the stockholders for
election in the event of an election other than at an annual meeting and thirty
(30) days before the corresponding date that had been the record date of the
previous year's annual meeting in the event of an election at an annual meeting.
Any such notification pursuant to this subparagraph (b) shall be effective and
such person shall be eligible to be elected or to
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serve only if the notification contains all information required under Items 3,
4, 5, 6(b) and 7 of Schedule 14A, Items 401(a), (e), and (f) of Regulation S-K
under the Securities Exchange Act of 1934, as amended, and Item 403(c) of
Regulation S-K as if such person were the Registrant, and such information
complies with the provisions of Rule 14a-9 of said Act.
SECTION 2. Classification of Board. The directors shall be divided into
three classes, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
directors constituting the entire Board of Directors. Upon the initial election
of directors, directors of Class I shall be elected to hold office for a term
expiring at the next succeeding annual meeting, directors of Class II shall be
elected for a term expiring at the second succeeding annual meeting and
directors of Class III shall be elected to hold office for a term expiring at
the third succeeding annual meeting. 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. If the number of directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional directors of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director.
SECTION 3. Vacancies. Any vacancy on the Board of Directors, howsoever
resulting, may be filled by a majority of the directors then in office, even if
less than a quorum, or by a sole remaining director. Any director elected to
fill a vacancy shall hold office for a term that shall coincide with the term of
the class to which such director shall have been elected.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at all annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of the Certificate of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to Article FOURTH thereof applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Article III, Section 2 unless expressly provided by such terms.
SECTION 4. Duties and Powers. Subject to the provisions of Article FOURTH
of the Certificate of Incorporation of the Corporation, the business of the
Corporation shall be managed by or under the direction of the Board of Directors
which 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 By-laws directed or required to be exercised or done by the
stockholders.
SECTION 5. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place
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as may from time to time be determined by the Board of Directors. Special
meetings of the Board of Directors may be called by the Chairman, if there be
one, the President, the Secretary or any three directors. Notice thereof stating
the place, date and hour of the meeting shall be given to each director either
by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone or telegram on twenty-four (24) hours' notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
SECTION 6. Quorum. Except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these By-laws, at all meetings of the
Board of Directors, a majority of the entire Board of Directors shall constitute
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
SECTION 7. Actions of Board. Unless otherwise provided by the Certificate
of Incorporation or these By-laws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee. Such consent shall have the same effect as unanimous vote. Such
consent may be signed and filed in duplicate counterparts.
SECTION 8. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these By-laws, members of the
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or any such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other
at the same time, and participation in a meeting pursuant to this Section 8
shall constitute presence in person at such meeting.
SECTION 9. Committees. (a) The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate and name one or
more committees, to consist of two or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may act in the place and stead of any absent or
disqualified member at any meeting of any such committee. In the absence or
disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or
disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any absent or disqualified member. Any committee, to
the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and
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authority of the Board of Directors in the management of the business and
affairs of the Corporation.
(b) Each committee shall keep regular minutes of its meetings and report
to the Board of Directors when required.
(c) Whenever, under the provisions of the statutes or of the Articles of
Incorporation or of these By-laws, notice is required to be given to any
committee member, it shall not be construed to mean personal notice unless
specifically allowed, but such notice may be given in writing, by mail,
addressed to such member, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to members may also be given by telegram or telephone.
No notice of a committee meeting or waiver thereof need state the purpose
of such meeting.
Whenever any notice is required to be given under the provisions of the
statutes or of the Articles of Incorporation or of these By-laws, a waiver
thereof 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.
Any Committee meeting may be called by the Chairman of the Board, President
or Secretary, or by any member of such Committee.
Attendance of a Director at a committee meeting shall constitute a waiver
of notice of such meeting and waiver of any and all objections to the place of
the committee meeting, the time of the committee meeting, or the manner in which
it has been called or convened, except when a Director states, at the beginning
of the committee meeting, any objection to the transaction of business because
the meeting is not lawfully called or convened.
SECTION 10. Compensation. The directors may be paid their expenses, if
any, of attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors or such other
compensation as the Board of Directors may determine. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
SECTION 11. Removal of Directors. Subject to the rights, if any, of the
holders of shares of Preferred Stock then outstanding, any or all of the
directors of the Corporation may be removed from office at any time, with or
without cause, by the affirmative vote of the holders of more than fifty percent
(50%) of the outstanding Common Stock of the Corporation.
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SECTION 12. Emergency Meeting. In the event of the death and/or disability
of both the Chairman and Vice Chairman of the Board of Directors or an outside
tender offer for this Corporation's stock, any member of the Board can call for
a meeting with twelve (12) hours advance notice either by telephone or by other
means of notice to the members of the Board.
ARTICLE IV.
OFFICERS
SECTION 1. Officers. The Board of Directors shall elect from their number
a Chairman of the Board and may elect a Vice Chairman of the Board, and the
Board shall also elect a President, Secretary and a Treasurer, who need not be
members of the Board. The Board may also elect one or more Executive Vice
Presidents, Senior Vice Presidents, Vice Presidents, Assistant Secretaries and
Assistant Treasurers who may or may not be members of the Board. The same person
may hold any two or more offices but no officer shall execute, acknowledge or
verify an instrument in more than one capacity. In addition, the Board may
appoint such other officers and agents as it may deem necessary for the
transaction of the business of the Corporation. In addition to the foregoing,
assistant officers may be appointed or terminated in writing by the Chairman of
the Board from time to time.
SECTION 2. Term. The term of office of all officers shall be until their
respective successors are elected and qualified or their earlier respective
resignation, death or removal. Any officer may be removed from office, with or
without cause, at any meeting of the Board of Directors by the affirmative vote
of a majority of Directors then in office. The Board of Directors shall have the
power to fill any vacancies in any offices irrespective of the reason for the
vacancy. In addition, any assistant officer may be removed by written action
by the Chairman of the Board.
SECTION 3. Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the President or any Vice President and any
such officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and power incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
SECTION 4. Salaries. The salaries and other compensation of all officers
of the Corporation may be fixed by the Board of Directors or in such manner as
the Board shall provide.
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SECTION 5. Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the stockholders and directors.
SECTION 6. Chief Executive Officer. The Chief Executive Officer shall
have responsibility for the general and active management of the business of the
Corporation, and shall see that all orders and resolutions of the Board are
carried into effect. He shall execute all authorized conveyances, contracts, or
other obligations in the name of the Corporation except where the signing and
execution therefore shall be expressly delegated by the Board of Directors to
some other officer or agent of the Corporation.
SECTION 7. Vice Chairman. The Vice Chairman of the Board shall have such
responsibilities and the duties as shall be designated to him by the Chairman
and the President for the general and active management of the Corporation, and
shall see that all orders and resolutions of the Board are carried into effect.
He shall have, as shall the Chairman, power to exercise all conveyances,
contracts or other obligations in the name of the Corporation.
SECTION 8. President. The President shall be the chief operating officer
of the Corporation and subject to the direction of the Chairman of the Board
shall have responsibility for the general and active management of the
Corporation, and shall see that all orders and resolutions of the Board are
carried into effect. The President shall, in the absence or disability of the
Chairman of the Board, perform the duties and exercise the powers of the
Chairman of the Board. He shall have, as shall the Chairman, power to execute
all conveyances, contracts or other obligations in the name of the Corporation.
SECTION 9. Executive Vice President, Senior Vice President and Vice
President. The Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents in the order designated by the Board of Directors or, lacking such a
designation, by the President, shall in the absence or disability of the
President perform the duties and exercise the powers of the President and shall
perform such other duties as the Board of Directors or the Chairman of the Board
shall prescribe. Each Executive Vice President, Senior Vice President and Vice
President of the Corporation shall have the power to execute all authorized
conveyances, contracts or other obligations in the name of the Corporation
except as otherwise directed by the Board of Directors.
SECTION 10. Secretary. The Secretary shall attend all meetings of the
Board and all meetings of the stockholders and record all votes and the minutes
of all proceedings in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors and shall perform such other duties as may be prescribed by
the Board of Directors or by the Chairman of the Board, under whose supervision
he shall act. He shall have the power to execute all authorized conveyances,
contracts or other obligations in the name of the Corporation except as
otherwise directed by the Board of Directors. He shall keep in safe custody the
seal of the Corporation and, when authorized by the Board, affix the same to any
instrument requiring it and, when so affixed, it shall be attested
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by his signature or by the signature of the Treasurer or an Assistant Secretary.
The Secretary shall keep a register of the post office address of each
stockholder. Said address shall be furnished to the Secretary by such
stockholder and the responsibility for keeping said address current shall be
upon the stockholder. The Secretary shall have general charge of the stock
transfer books of the Corporation, but may delegate such charge to a
professional transfer agent.
SECTION 11. Treasurer. The Treasurer shall have custody of and keep
account of all money, funds and property of the Corporation, unless otherwise
directed by the Board of Directors, and he shall render such accounts and
present such statements to the Directors and President as may be required of
him. He shall deposit funds of the Corporation which may come into his hands in
such bank or banks as the Board of Directors may designate. He shall keep his
bank accounts in the name of the Corporation and shall exhibit his books and
accounts at all reasonable times to any Director of the Corporation upon
application at the office of the Corporation during business hours. If required
by the Board of Directors, he shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board for the
faithful performance of his duties and upon his death, resignation or removal
from office the return of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the
Corporation. He shall have the power to execute all authorized conveyances,
contracts or other obligations in the name of the Corporation except as
otherwise directed by the Board of Directors.
SECTION 12. Assistants. The Assistant Secretaries and the Assistant
Treasurers (if any), respectively, in the absence of the Secretary or the
Treasurer, as the case may be, shall perform the duties and exercise the powers
of such Secretary or Treasurer and shall perform such other duties as the Board
of Directors or the Chairman of the Board shall from time to time prescribe.
Other Assistant officers appointed by designation in writing by the Chairman of
the Board shall perform such duties as the Chairman of the Board shall from time
to time prescribe. Each Assistant officer shall have the power to execute all
authorized conveyances, contracts or other obligations in the name of the
Corporation, except as otherwise directed by the Board of Directors or the
Chairman of the Board.
SECTION 13. Suspension of Officers. The Secretary, Treasurer, or any
Executive Vice President, Senior Vice President or Vice President may be
summarily suspended by the Chairman of the Board subject to subsequent action by
the Board of Directors. Any such suspension shall be in writing.
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ARTICLE V.
STOCK
SECTION 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation
(i) by the Chairman of the Board of Directors, the President or a Vice President
and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of shares owned by
him in the Corporation.
SECTION 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has 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 were such officer, transfer agent or registrar at the date of issue.
SECTION 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as the Board of Directors shall require and/or to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
SECTION 4. Transfers. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these By-laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the certificate
or by his attorney lawfully constituted in writing and upon the surrender of
the certificate therefor, which shall be cancelled before a new certificate
shall be issued.
SECTION 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty days nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any
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adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
SECTION 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
ARTICLE VI.
NOTICES
SECTION 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these By-laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address
as it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given personally
or by facsimile, telegram, telex or cable.
SECTION 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these By-laws, to be given to any director,
member of a committee or stockholder, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein shall be deemed equivalent thereto.
ARTICLE VII.
GENERAL PROVISIONS
SECTION 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, and may be paid out of any funds legally available therefor in cash, in
property, or in shares of the capital stock. The payment of any dividend
declared may be made conditional, in whole or in part, upon the occurrence or
non-occurrence of any event. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors from time to time, in its absolute discretion,
deems proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
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SECTION 2. Disbursements. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
SECTION 3. Fiscal Year. The fiscal year of the Corporation shall end on
the last day of December of each year unless another date shall be fixed by
resolution of the Board of Directors.
SECTION 4. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII.
INDEMNIFICATION
SECTION 1. Obligation to Indemnify. The Corporation shall indemnify to
the full extent authorized or permitted by the laws of the State of Delaware any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director or officer of the Corporation, or by reason of the fact that such
director or officer is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, domestic or foreign, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding, and shall advance expenses incurred by any such officer or director
in defending any such action, suit or proceeding to the full extent authorized
or permitted by the laws of the State of Delaware upon receipt of an undertaking
by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized by Section 145 of the Delaware General Corporation
Law. Nothing contained herein shall affect any rights to indemnification to
which employees other than directors and officers may be entitled by law. No
amendment to or repeal of this Section 1 of Article VIII shall apply to or have
any effect on any right to indemnification provided hereunder with respect to
any acts or omissions occurring prior to such amendment or repeal.
SECTION 2. Liability to the Corporation. No director of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary
damages for any breach of fiduciary duty by such a director as a director.
Notwithstanding the foregoing sentence, a director shall be liable to the extent
provided by applicable law (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the DGCL, or (iv) for any transaction from
which such director derived an improper personal benefit. No amendment to or
repeal of this Section 2 of
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Article VIII shall adversely affect any right or protection of any director of
the Corporation existing at the time of such amendment or repeal for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
SECTION 3. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to indemnify
him against such liability under the provisions of law;
The Corporation may create a trust fund, grant a security interest and/or
use other means (including, without limitation, letters of credit, surety bonds
and/or other similar arrangements), as well as enter into contracts providing
indemnification to the full extent authorized or permitted by law, and including
as part thereof provisions with respect to any or all of the foregoing to ensure
the payment of such amounts as may become necessary to effect indemnification as
provided therein, or elsewhere.
SECTION 4. Non-exclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant
to this Article VIII shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any By-law, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 or 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State of Delaware, or
otherwise.
ARTICLE IX.
AMENDMENTS
SECTION 1. By-law Amendments. These By-laws of the Corporation may be
made, altered, amended, changed, added to or repealed by the Board of Directors
or by the affirmative vote of more than fifty percent (50%) of the outstanding
stock of the Corporation entitled to vote thereon.
SECTION 2. Entire Board of Directors. As used in these By-laws, the term
"entire Board of Directors" means the total number of directors which the
Corporation would have if there were no vacancies.