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RESTATED AND AMENDED BYLAWS
of
HEMISPHERX BIOPHARMA, INC.
ARTICLE I.
MEETINGS OF STOCKHOLDERS.
Section 1.1. Annual Meeting. The annual meeting of
stockholders shall be held at such date, time and place, either within or
without the State of Delaware, as may be designated by resolution of
the Board of Directors from time to time. At the annual meeting,
directors shall be elected and such other business transacted as shall
have been properly brought before the meeting.
Section 1.2. Special Meeting. Special meetings of stockholders
for any purpose or purposes may be called by the Chairman of the
Board, the President, a majority of the Board of Directors, or a majority
of the Executive Committee, and shall be called by the Secretary upon
the request, in writing, of the stockholders owning a majority of the
shares of capital stock of the Corporation issued and outstanding and
entitled to vote at such meeting. A stockholder request for a special
meeting shall be signed, dated and delivered to the Secretary, shall state
the purpose of the proposed meeting, and shall provide the information
required by Section 1.4(c) hereof. The Board of Directors or, in the
absence of action by the Board of Directors, the Chairman of the Board,
shall have the sole power to determine the date, time and place for any
special meeting of stockholders and to set a record date for the
determination of stockholders entitled to vote at such meeting pursuant
to Section 1.11 hereof. Following such determination, it shall be the
duty of the Secretary to cause notice to be given to the stockholders
entitled to vote at such meeting, in the manner set forth in Section 1.3
hereof, that a meeting will be held at the place, time and date and in
accordance with the record date determined by the Board of Directors
or the Chairman of the Board. The stockholders requesting the special
meeting shall not have the power to give notice of the meeting.
Section 1.3. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of
the meeting shall be given that shall state the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called. Unless otherwise provided by law, the
Certificate of Incorporation or these By-laws, the written notice of any
meeting shall be given not less than ten (10) nor more than sixty (60)
days before the date of the meeting to each stockholder entitled to vote
at such meeting. If mailed, such notice shall be deemed given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
Corporation.
Section 1.4. Advance Notice Requirements for Stockholder
Proposals. The following procedures shall govern all cases in which a
stockholder seeks to propose business to be addressed at a meeting of
stockholders or to nominate persons to stand for election as directors of
the Corporation (a "Stockholder Proposal"). No business shall be
transacted at a meeting of stockholders except in accordance with the
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following procedures. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as directors
of the Corporation. Notwithstanding any language in these by-laws to
the contrary, this section shall not apply to any right of holders of
preferred shares of the Corporation to nominate and elect a specified
number of directors in certain circumstances to the extent such
procedures are set forth in the Certificate of Incorporation.
(a) Annual Meetings of Stockholders.
(1) A Stockholder Proposal may be brought before
an annual meeting of stockholders only (i) pursuant to the
Corporation's notice of meeting delivered pursuant to Section 1.3
hereof (or any supplement thereto), (ii) by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or the
Chairman of the Board or (iii) by any stockholder of the Corporation
who was a stockholder of record of the Corporation at the time the
notice provided for in this Section 1.4 is delivered to the Secretary of
the Corporation, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in subparagraphs (2) and
(3) of this paragraph (a) in this Section 1.4.
(2) For a Stockholder Proposal to be properly
brought before an annual meeting by a stockholder pursuant to clause
(iii) of paragraph (a)(1) of this Section 1.4, the stockholder must have
given timely notice thereof in writing to the Secretary of the
Corporation and the subject of the Stockholder Proposal must otherwise
be a proper matter for stockholder action as determined by the Board of
Directors. The stockholder's notice shall contain, at a minimum, the
information set forth in Section 1.4(c). To be timely, a stockholder's
notice , for all Stockholder Proposals other than the nomination of
candidates for director, shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than sixty (60)
nor more than ninety (90) days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date
that is not within thirty (30) days before or after such anniversary date,
the stockholder's notice in order to be timely must be so received not
later than the close of business on the tenth (10th) day following the
day on which such notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting was made,
whichever first occurs. To be timely, a stockholder's notice , with
respect to a Stockholder Proposal for nomination of candidates for
director, shall be delivered to the Secretary at the principal executive
offices of the Corporation not less than ninety (90) nor more than one
hundred twenty (120) days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date
that is not within thirty (30) days before or after such anniversary date,
the stockholder's notice in order to be timely must be so received not
later than the close of business on the tenth (10th) day following the
day on which such notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting was made,
whichever first occurs. In no event shall the public announcement of an
adjournment or postponement of an annual meeting of stockholders
commence a new time period (or extend any time period) for the giving
of a stockholder's notice as described above.
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(3) Notwithstanding anything in paragraph (a)(2) of
this Section 1.4 to the contrary, in the event that the Stockholder
Proposal relates to the nomination of candidates for director and the
number of directors to be elected to the Board of Directors of the
Corporation at an annual meeting 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 one hundred days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this Section
1.4 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 tenth 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 described in the Corporation's notice of meeting given pursuant to
Section 1.3 hereof. To the extent such business includes the election of
directors, a Stockholder Proposal nominating persons to stand for
election as directors may be made at a special meeting of stockholders
only (i) by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or the Chairman of the Board, or (ii) by
any stockholder of the Corporation who is a stockholder of record at the
time the notice provided for in this Section 1.4(b) is delivered to the
Secretary of the Corporation, who is entitled to vote at the special
meeting and who gives timely notice in writing by the Secretary of the
Corporation. The stockholder's notice shall contain, at a minimum, the
information set forth in Section 1.4(c). 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
tenth 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 or postponement of a
special meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above.
(c) Contents of Stockholder's Notice. Any stockholder's
notice required by this Section 1.4 shall set forth the following
information: As to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the Stockholder Proposal is made, the
stockholder's notice shall set forth (i) the name and address of such
stockholder and of such beneficial owner, as they appear on the
Corporation's books, (ii) the class and number of shares of capital stock
of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner and (iii) a representation that
such stockholder intends to appear in person or by proxy at the
stockholder meeting. For any Stockholder Proposal that seeks to
nominate persons to stand for election as directors of the Corporation,
the stockholder's notice also shall include (i) a description of all
arrangements or understandings between such stockholder and each
proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made, (ii) a
representation whether the stockholders or the beneficial owners, if any,
intend or are part of a group which intends to (1) deliver a proxy
statement and/or form of proxy to holders of at least the percentage of
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the Corporation's outstanding capital stock required to elect the
nominee and/or (2) otherwise solicit proxies from stockholders in
support of such nomination, and (iii) any other information relating to
such stockholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder. For any
Stockholder Proposal that seeks to nominate persons to stand for
election as directors of the Corporation, the stockholder's notice also
shall state, as to each person whom the stockholders propose to
nominate for election or reelection as a director, (i) the name, age,
business address and residence address of the person, (ii) the principal
occupation and employment of the person, (iii) the written consent of
each proposed nominee to being named as a nominee and to serve as a
director if elected., (iv) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of
record by the person and (v) any other information relating to the
person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of
proxies for election of directors pursuant to Section 14 of the Exchange
Act, and the rules and regulations promulgated thereunder. The
Corporation may require any proposed nominee to furnish such other
information as it may reasonably require to determine the eligibility of
such proposed nominee to serve as a director of the Corporation. For
any Stockholder Proposal that seeks to propose matters to be
considered at a stockholder meeting other than the nomination of
persons to stand for election as directors of the Corporation, the
stockholder's notice shall set forth for each item of business proposed
for consideration (i) a description of the item of business, (ii) the text of
the proposal or business (including the text of any resolutions proposed
for consideration and in the event that such business includes a
proposal to amend the by-laws of the Corporation, the language of the
proposed amendment), (iii) the reasons for conducting such business at
the stockholder meeting, (iv) and any material interest in such business
of such stockholder and the beneficial owner, if any, on whose behalf
the Stockholder Proposal is made, and (v) any other information
relating to the stockholder, the beneficial owner, or the proposed
business that would be required to be disclosed in a proxy statement or
other filings in connection with solicitations of proxies relating to the
proposed item of business pursuant to Section 14 of the Exchange Act,
and the rules and regulations promulgated thereunder.
(d) Only Stockholder Proposals made in accordance with
the procedures set forth in this Section 1.4 shall be considered at an
annual or special meeting of stockholders of the Corporation. Except
as otherwise provided by law, the chair of the meeting shall have the
power and duty to (i) determine whether a Stockholder Proposal was
made in accordance with the procedures set forth in this Section 1.4 and
(ii) if any Stockholder Proposal is not in compliance with this Section
1.4, including whether the stockholder or beneficial owner, if any, on
whose behalf the Stockholder Proposal is made solicits (or is part of a
group which solicits) or fails to so solicit (as the case may be) proxies
in support of the Stockholder Proposal in compliance with such
stockholder's representation as required by Section (c) of this Section
1.4, to declare that such Stockholder Proposal shall be disregarded.
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(e) For purposes of this Section 1.4, "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.
(f) Notwithstanding the foregoing provisions of this Section
1.4, a stockholder also shall comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect
to the matters set forth in this Section 1.4. Nothing in this Section 1.4
shall be deemed to affect any rights of stockholders to request inclusion
of proposals in the Corporation's proxy statement pursuant to Rule 14a-
8 under the Exchange Act.
Section 1.5. Postponement and Cancellation of Meeting. Any
previously scheduled annual or special meeting of the stockholders may
be postponed and any previously scheduled annual or special meeting
of the stockholders called by the Chairman of the Board, the President,
a majority of the Board of Directors, or a majority of the Executive
Committee may be canceled by resolution of the Board of Directors
upon public notice given prior to the time previously scheduled for
such meeting of stockholders.
Section 1.6 Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these by-laws, at each meeting of
stockholders the presence in person or by proxy of the holders of a
majority in voting power of the outstanding shares of stock entitled to
vote at the meeting shall be necessary and sufficient to constitute a
quorum. In the absence of a quorum, the chair of the meeting may
adjourn the meeting from time to time in the manner provided in
Section 1.10 hereof until a quorum shall attend. Shares of the
Corporation's own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right
of the Corporation or any subsidiary of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary
capacity. The chair of the meeting shall have the power and the duty to
determine whether a quorum is present at any meeting of stockholders.
Section 1.7. Officers for Meeting of Stockholders. Meetings of
stockholders shall be presided over by the Chairman of the Board, if
any, or in his absence by the President, or in his absence by a Vice
President, or in the absence of the foregoing persons by a chair
designated by the Board of Directors, or in the absence of such
designation by a chair chosen at the meeting by a plurality vote. The
Secretary shall act as secretary of the meeting, but in his absence the
chair of the meeting may appoint any person to act as secretary of the
meeting.
Section 1.8. Conduct of Meetings. Every meeting of
stockholders shall be presided over by the chair of the meeting selected
pursuant to Section 1.7, hereof. 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 shall be determined by the chair of the meeting
and announced at the meeting. The Board of Directors may adopt by
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resolution such rules and regulations 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 chair of the meeting shall have the exclusive right and
authority to prescribe such rules, regulations and procedures and to do
all such acts as, in the judgment of the chair, 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 chair of
the meeting, may include, without limitation, the following: (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 chair of
the meeting shall determine; (iv) restrictions on entry to the meeting
after the time fixed for the commencement thereof; and (v) limitations
on or the elimination of time allotted to questions or comments by
participants. Unless and to the extent determined by the Board of
Directors or the chair of the meeting, meetings of stockholders shall not
be required to be held in accordance with the rules of parliamentary
procedure.
Section 1.9. Voting; Proxies. Except as otherwise provided by
or pursuant to the provisions of the Certificate of Incorporation, each
stockholder entitled to vote at any meeting of stockholders shall be
entitled to one vote for each share of stock held by such stockholder
which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or
dissent to corporate action in writing without a meeting may authorize
another person or persons to act for such stockholder by proxy, but no
such proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. A proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by delivering a proxy in
accordance with applicable law bearing a later date to the Secretary of
the Corporation. Voting at meetings of stockholders need not be by
written ballot. At all meetings of stockholders, a plurality of the votes
cast shall be sufficient to elect directors. All other elections and
questions shall, unless otherwise provided by the Certificate of
Incorporation, these by-laws, the rules or regulations of any stock
exchange applicable to the Corporation, or applicable law or pursuant
to any regulation applicable to the Corporation or its securities, be
decided by the affirmative vote of the holders of a majority in voting
power of the shares of stock of the Corporation which are present in
person or by proxy and entitled to vote thereon.
Section 1.10. Adjournment of Meeting. Any meeting of
stockholders, annual or special, may be adjourned solely by the chair of
the meeting from time to time to reconvene at the same or some other
time, date and place. The stockholders present at a meeting shall not
have authority to adjourn the meeting. Notice need not be given of any
such adjourned meeting if the time, date and place thereof are
announced at the meeting at which the adjournment is taken. If the
time, date and place of the adjourned meeting are not announced at the
meeting at which the adjournment is taken, then the Secretary of the
Corporation shall give written notice of the time, date and place of the
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adjourned meeting not less than ten (10) days prior to the date of the
adjourned meeting. Notice of the adjourned meeting also shall be given
if the meeting is adjourned in a single adjournment to a date more than
30 days or in successive adjournments to a date more than 120 days
after the original date fixed for the meeting.
At an adjourned meeting at which a quorum is present, the
stockholders may transact any business which might have been
transacted at the original meeting. Once a share is represented for any
purpose at a meeting, it shall be present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting
unless a new record date is or must be set for the adjourned meeting. A
new record date shall be set if the meeting is adjourned in a single or
successive adjournments to a date more than 120 days after the original
date fixed for the meeting. If after the adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote at the adjourned
meeting consistent with the new record date.
Section 1.11 Fixing Date for Determination of Stockholders of
Record.
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 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 other than stockholder action by
written consent, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which record
date: (i) in the case of determination of stockholders entitled to vote at
any meeting of stockholders or adjournment thereof, shall, unless
otherwise required by law, not be more than sixty (60) nor less than ten
(10) days before the original date of such meeting, and (ii) in the case
of any other lawful action other than stockholder action by written
consent, shall not be more than sixty days prior to such other action. If
no record date is fixed by the Board of Directors: (i) the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding
the day on which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is
held, and (ii) the record date for determining stockholders for any other
purpose (other than stockholder action by written consent) shall be at
the close of business on the day on which the Board of Directors adopts
the resolution relating thereto. 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
and shall fix a new record date for the adjourned meeting if the meeting
is adjourned in a single or successive adjournments to a date more than
120 days after the original date fixed for the meeting.
Section 1.12. Procedures for Stockholder Action by Consent.
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1.12.1 Request for Record Date. The record date for
determining stockholders entitled to express consent to corporate action
in writing without a meeting shall be as fixed by the Board of Directors
or as otherwise established under this Section 1.12.1. Any person
seeking to have the stockholders authorize or take corporate action by
written consent without a meeting shall, by written notice addressed to
the Secretary and delivered to the Corporation and signed by a
stockholder of record, request that a record date be fixed for such
purpose. The written notice shall contain at a minimum the
information required in Section 1.4(c) for a Stockholder Proposal and
shall state the reasons for soliciting consents for such action. The
Board of Directors shall have ten (10) days following the date of receipt
of the notice to determine the validity of the request, including the
sufficiency of the information provided. During the ten (10) day
period, the Corporation may require the stockholder of record and/or
beneficial owner requesting a record date for proposed stockholder
action by consent to furnish such other information as it may
reasonably require to determine the validity of the request for a record
date. Following the determination of the validity of the request, and no
later than ten (10) days after the date on which such request is received
by the Corporation, the Board of Directors may fix a record date for
such purpose which shall be no more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the
Board of Directors and shall not precede the date such resolution is
adopted. If the Board of Directors fails within ten (10) days after the
date the Corporation receives such notice to fix a record date for such
purpose, the record date shall be the day on which the first written
consent is delivered to the Corporation in the manner described in
Section 1.12.3 below unless prior action by the Board of Directors is
required by law, in which event the record date shall be at the close of
business on the day on which the Board of Directors adopts the
resolution taking such prior action.
1.12.2 Form of Consent. Every written consent purporting to
take or authorize the taking of corporate action and/or related
revocations (each such written consent and related revocation is
referred to in this Section 1.12 as a "Consent") shall bear the date of
signature of each stockholder who signs the Consent, and no Consent
shall be effective to take the corporate action referred to therein unless,
within 60 days of the earliest dated Consent delivered in the manner
required by this Section 1.12, Consents signed by a sufficient number
of stockholders to take such action are so delivered to the Corporation.
1.12.3 Delivery of Consent. A Consent shall be delivered to
the Corporation by delivery to its registered office in the State of
Delaware or to the Secretary of the Corporation at the Corporation's
principal place of business. Delivery to the Corporation's registered
office shall be made by hand or by certified or registered mail, return
receipt requested.
In the event of the delivery to the Corporation of a Consent, the
Secretary of the Corporation shall provide for the safe-keeping of such
Consent and shall promptly conduct such ministerial review of the
sufficiency of the Consents and of the validity of the action to be taken
by stockholder consent as the Secretary deems necessary or
appropriate, including, without limitation, whether the holders of a
number of shares having the requisite voting power to authorize or take
the action specified in the Consent have given consent; provided,
however, that if the corporate action to which the Consent relates is the
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removal or replacement of one or more members of the Board of
Directors, the Secretary of the Corporation shall promptly designate
two persons, who shall not be members of the Board of Directors, to
serve as Inspectors with respect to such Consent and such Inspectors
shall discharge the functions of the Secretary of the Corporation under
this Section 1.12.3. If after such investigation the Secretary or the
Inspectors (as the case may be) shall determine that the Consent is valid
and that the action therein specified has been validly authorized, that
fact shall forthwith be certified on the records of the Corporation kept
for the purpose of recording the proceedings of meetings of
stockholders, and the Consent shall be filed in such records, at which
time the Consent shall become effective as stockholder action. In
conducting the investigation required by this Section 1.12.3, the
Secretary or the Inspectors (as the case may be) may, at the expense of
the Corporation, retain special legal counsel and any other necessary or
appropriate professional advisors, and such other personnel as they may
deem necessary or appropriate to assist them, and shall be fully
protected in relying in good faith upon the opinion of such counsel or
advisors.
No action by written consent without a meeting shall be
effective until such date as the Secretary or the Inspectors (as the case
may be) certify to the Corporation that the Consents delivered to the
Corporation in accordance with Section 1.12.3 represent at least the
minimum number of votes that would be necessary to take the action.
Nothing contained in this Section 1.12.3 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
Secretary or the Inspectors, or to take any other action (including,
without limitation, the commencement, prosecution, or defense of any
litigation with respect thereto, and the seeking of injunctive relief in
such litigation).
Section 1.13. Inspectors of Election. The Corporation may, and
shall if required by law, in advance of any meeting of stockholders,
appoint one or more inspectors of election, who may be employees of
the Corporation, to act at the meeting or any adjournment thereof and to
make a written report thereof. The Corporation may designate one or
more persons as alternate inspectors to replace any inspector who fails
to act. In the event that no inspector so appointed or designated is able
to act at a meeting of stockholders, the person presiding at the meeting
shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall
take and sign an oath to execute faithfully the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspector or inspectors so appointed or designated shall (i) ascertain the
number of shares of capital stock of the Corporation outstanding and
the voting power of each such share, (ii) determine the shares of capital
stock of the Corporation represented at the meeting and the validity of
proxies and ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify
their determination of the number of shares of capital stock of the
Corporation represented at the meeting and such inspectors' count of all
votes and ballots. Such certification and report shall specify such other
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information as may be required by law. In determining the validity and
counting of proxies and ballots cast at any meeting of stockholders of
the Corporation, the inspectors may consider such information as is
permitted by applicable law. No person who is a candidate for an
office at an election may serve as an inspector at such election.
Section 1.14 List of Stockholders Entitled to Vote. The
Secretary shall prepare and make, at least ten (10) 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 (10) days prior to
the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or if
not so specified, at the place where the meeting is to be held. The 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. Upon the willful neglect or refusal of the directors to
produce such a list at any meeting for the election of directors, they
shall be ineligible for election to any office at such meeting. Except as
otherwise provided by law, the stock ledger shall be the only evidence
as to who are the stockholders entitled to examine the stock ledger, the
list of stockholders or the books of the Corporation, or to vote in person
or by proxy at any meeting of stockholders.
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ARTICLE II.
BOARD OF DIRECTORS.
Section 2.1 Number. The Board of Directors shall consist of
one or more members, the number thereof to be determined from time
to time by resolution of the Board of Directors. Directors need not be
stockholders.
Section 2.2. Qualifications. No person who is or has been within the
last five (5) years under Critical Investigation by the Food and Drug
Administration ("FDA") (any such person, an "FDA Investigatee"), and
no person who is or has been within the last five (5) years an Affiliate
or Associate of any FDA Investigatee ("Related FDA Investigatee")
shall be eligible to be elected or to serve as a director of the
corporation; provided, however, that a director of the corporation who
is validly nominated and elected a director but who after such election
becomes a FDA Investigatee or Related FDA Investigatee shall not
solely by reason of so becoming or being a FDA Investigatee or
Related FDA Investigatee cease to be a director and instead shall
continue as a director for the reminder of the term for which such
director was elected or until such director's resignation or removal;
provided further, however, that it shall be the duty of any such director
promptly to notify the Board of Directors that such director is or has
become a FDA Investigatee or Related FDA Investigatee and it also
shall be the duty of any such director, either to promptly take all steps
as may be necessary to cause such director to be neither a FDA
Investigatee or Related FDA Investigatee, or, it all such steps cannot be
or have not been taken and such director continues to be either a FDA
Investigatee or Related FDA Investigatee and the pertinent Critical
Investigation has not been Finally Resolved within the pertinent
Resolution Period, to resign as a director of the corporation, effective
immediately, at or before the end of such Resolution Period.
(a) For purposes of this Section, the following terms shall have
the following respective meanings:
(i) Affiliate" means any person (or group of persons having
any written or unwritten
agreement , arrangement or understanding, whether of not enforceable,
relating to any Critical Investigation) who or which, directly, or
indirectly through one or more intermediaries, controls, is controlled
by, or is under common control with, any FDA Investigatee. For
purposes of the foregoing definitions, the term "control" (including the
terms "controlling" "controlled by" and "under common control with")
means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a person, whether
through the ownership of voting securities, by contract, or otherwise,
and a "controlling" relationship between any person (or such a group)
and another person shall be deemed to exist whenever (but is not
limited to the situation in which) the former person (or members of
such a group) directly or indirectly holds or owns at least twenty
percent (20%) of the aggregate voting power with respect to, the latter
person.
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(ii) "Associates" means any person who or which:
(1) is an officer, partner, director, trustee or similar
fiduciary of, or
authorized to act in any similar capacity with respect to, any FDA
Investigatee, any Affiliate or any other Associate of a FDA
Investigatee;
(2) is directly or indirectly, the holder of owner of at
least ten percent
(10%) any class or series of equity securities issued by any FDA
Investigatee or Associate;
(3) has a substantial beneficial interest in any FDA
Investigatee or Affiliate which is a trust or estate; or
(4) is a member of the immediate family of any FDA
Investigatee, any Affiliate or
any other person described in (1), (2), or (3) above.
For purposes of the foregoing definition, a person's "immediate family"
includes such person's spouse, children, siblings, parents-in-law, sons-
and daughter-in-law, and brother- and sister-in-law.
(III) Critical Investigation means any investigation by the FDA
which has reached the stage of the issuance of a "Warning Letter" by
the FDA and which might reasonably be expected, absent immediate
and complete remediation, to lead to seizure of assets, injunctions or
criminal indictments.
(IV) When used with respect to any particular Critical
Investigation, the term "Finally Resolved" means that the FDA has
issued a written statement that the Critical Investigation has been
satisfactorily resolved and terminated.
(V) "Resolution Period" means, in any pertinent case, the
ninety (90) day period (or longer period, not exceeding one hundred
fifty (150) days, as hereafter contemplated by the proviso to this
definition) beginning on the earlier of (1) the date on which a director
of the corporation notifies the Board of Directors that such director is
or has become a FDA Investigatee or Related Person or (2) the date on
which the Board of Directors determines that a director of the corporation
is or has become a FDA Investigatee or Related FDA Investigatee; provided,
however, that the Board of Directors may (but is not required to) extend a
Resolution Period for up to an additional sixty (60) days if the director
establishes to the Board's satisfaction a reasonable likelihood that
during such extended period the pertinent Critical Investigation will be
Finally Resolved or such director will cease to be both a FDA
Investigatee and a Related FDA Investigatee.
(VI) "Subsidiary" means any corporation or other entity at least
fifty percent (50%) of the equity of which is owned, directly or indirectly,
by the corporation.
(b) The Board of Directors of the corporation (acting by
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at least a majority of all Directors, excluding any who have acknowledged
themselves to be or have been determined to be FDA Investigatee or Related
FDA Investigatee at the time of such Board action and excluding any director
or directors whose status as FDA Investigatee or Related FDA
Investigatee is the subject of such action) shall have the authority to
determine whether any director of the corporation is or is not or has
ceased to be a FDA Investigatee or Related FDA Investigatee, and the
Board of Directors (acting by at least a majority of all directors,
excluding any who have acknowledged themselves to be or have been
determined to be FDA Investigatee or Related FDA Investigatee) shall
have the authority to determine whether any person nominated or
proposed for nomination as a director or who is the subject of a
shareholder request as hereinafter provided is ineligible to be so
nominated and elected by virtue or being a FDA Investigatee or Related
FDA Investigatee. Each such Board determination shall be based upon
such information as has been brought to the attention of the Board
(whether in a shareholder request or otherwise) at the time such
determination is made, and no Board determination that any director or
other person is or is not or has ceased to be a FDA Investigatee or
Related FDA Investigatee shall preclude the Board from reconsidering
the matter and making the contrary determination in light of any facts
or circumstances first coming to the attention of the Board after the
prior determination was made.
(c) The Board of Directors shall not nominate any
person for election as a
director of the corporation, unless such prospective nominee has
provided the Board with all such information as the Board (or any
member thereof not excluded from determining the status of such
person as a FDA Investigatee or Related FDA Investigatee) has deemed
necessary or appropriate to enable the Board to determine such status
and with a signed statement by the prospective nominee that such
person, having reviewed this Section, is aware of no reason not
disclosed to the Board why he or she would or might be considered a
FDA Investigatee or Related FDA Investigatee (which statement also
shall include an undertaking by such person that if he or she is
nominated, such person now promptly will inform the Board, by
written notice to the Chairman of the Board or the Secretary of the
corporation, if at any time prior to the election to which such person's
nomination relates he or she becomes aware of any fact or
circumstance, whether in existence on the date such undertaking is
given or arising afterward, which has given such person any reason to
believe that he or she is or might be considered a FDA Investigatee or
Related FDA Investigatee), and unless after receipt of such information
and such statement, the Board has determined that the prospective
nominee is not a FDA Investigatee or Related FDA Investigatee.
(d) Any shareholder who is uncertain whether any person such shareholder
desires to nominate for election as a director of the corporation (a
"candidate") is a FDA Investigatee or Related Person may request a
determination from the Board concerning that matter. Any such
request must be in writing, identify the candidate, set forth all reasons
why the shareholder has such uncertainty concerning the candidate,
explain why the shareholder believes that the candidate should not be
considered a FDA Investigatee or Related FDA Investigatee and
include an undertaking by or on behalf of the shareholder that, if the
candidate is determined not to be a FDA Investigatee or Related FDA
Investigatee, the shareholder promptly will inform the Board in the
manner specified in paragraph (e) above if any time prior to the election
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of directors next occurring the shareholder learns of any fact or
circumstance (whether in existence on the dare of the request or arising
afterward) which has given the shareholder any other reason to believe
that or to be uncertain whether the candidate is or might be considered
a FDA Investigatee or Related FDA Investigatee and believes for the
reasons stated in the request that he or she should not be considered a
FDA Investigatee or Related FDA Investigatee, which statement also
shall include an undertaking by the candidate comparable to that of the
requesting shareholder. With respect to any meeting at which directors
are to be elected, a shareholder may submit requests as to any number
of candidates up to and including five times at which the number of
directors to be elected at such meeting. A request may be submitted at
any time at which the shareholder properly may give notice of intent to
nominate a candidate for election as a director (other than a time at
which such giving of notice of intent is proper only by virtue of the
provisions of paragraph (b) of this Section), and no request may be
submitted at any other time. No request shall be deemed "submitted"
for any purposes hereunder unless and until it is delivered in person to
the Chairman of the Board or the Secretary of the corporation or
delivered to the principal offices of the corporation addressed to the
attention of the Chairman or the Secretary. No request shall constitute
a notice of intent to nominate any candidate unless it expressly states
that it is intend as such a notice and it otherwise complies with all
applicable requirements for such a notice. Neither submission of a
request, nor any action taken thereafter with respect to such request,
shall operate as a waiver of or otherwise relieve any shareholder of any
otherwise applicable procedural requirements respecting nomination of
director candidates, except as and to the extent contemplated in
paragraph (b).
(e) If any request satisfying the requirements of paragraph (f) is
timely and property submitted, the Board of Directors, within ten days
following the date such request is submitted (i.e., if it is impossible or
impracticable to do so during such period, as soon as practicable
thereafter), shall consider the request and determine whether the
candidate who is the subject of the request is ineligible to be nominated
or elected a director by virtue of being a FDA Investigatee or Related
FDA Investigatee. As promptly as possible following such action, the
requesting shareholder shall be notified in writing of the nature of such
determination and, if the determination made is that the candidate is a
FDA Investigatee or Related FDA Investigatee, the basis for such
determination. In any other case in which the Board determines that
any candidate as to which a notice of intent to nominate has been given
is ineligible to be nominated or elected a director by virtue of being a
FDA Investigatee or Related FDA Investigatee (including any case in
which a contrary determination previously has been made in response
to a shareholder request), the shareholder having given such notice of
intent shall be notified in writing of such determination and the basis
therefor as promptly as possible thereafter.
(f) If a candidate who is the subject of a proper and timely
submitted request meeting the requirements of paragraph (f) is
determined by the Board not to be a FDA Investigatee or Related FDA
Investigatee and the request was submitted at least five days in advance
of the last date on which the requesting shareholder otherwise would
have been entitled to give notice of intent to nominate such candidate,
then the Board's determination shall operate as a waiver of the time
limits otherwise applicable to the giving of such notice of intent to the
extent, if any, necessary to afford the shareholder a period of five days
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following the date on which notice of the Board's determination is
given to the shareholder within which to give notice of intent to
nominate such candidate. If, in response to a timely and properly
submitted request, the Board determines that the candidate who is the
subject of the request is a FDA Investigatee or Related FDA
Investigatee and the request was submitted at least five days in advance
of the last date on which the requesting shareholder otherwise would
have been entitles to give notice of intent to nominate, then the Board's
determination shall operate as a waiver of the time limits otherwise
applicable to the giving of notice of intent to nominate to the extent, if
any, necessary to afford the requesting shareholder a period of fifteen
days following the date on which notice of the Board's determination is
given to the shareholder within which to give notice of intent to
nominate another person in lieu of the ineligible candidate. In any
other case in which the Board determines that a candidate is a FDA
Investigatee or Related FDA Investigatee, such determination shall
operate as a waiver if and only to the extent expressly so provided in
the resolutions setting forth such determination or subsequent Board
resolution. Whenever any shareholder is afforded an additional time
period within which to give notice of intention to nominate, the Board
may afford the other shareholders of the corporation a comparable
additional period of time within which to give such notice.
Section 2.3 Election; Resignation; Vacancies. At each annual
meeting, the stockholders shall elect directors each of whom shall hold
office for a term of one year or until his successor is duly elected and
qualified, subject to such director's earlier death, resignation,
disqualification or removal. Any director may resign at any time upon
written notice to the Corporation. Such resignation need not be
accepted to be effective. Unless otherwise provided by law or the
Certificate of Incorporation, any newly created directorship or any
vacancy occurring on the Board of Directors for any cause may be
filled solely by a majority of the remaining members of the Board of
Directors, although such majority is less than a quorum, or by the sole
remaining director, and each director so elected shall hold office until
the expiration of the term of office of the director so replaced or until
the director's successor is elected and qualified. The stockholders shall
not have the power to appoint directors to any newly created
directorship or vacancy.
Section 2.4 Regular Meetings. Regular meetings of the Board
of Directors may be held at such places within or without the State of
Delaware and at such times as the Board of Directors may from time to
time determine. It shall not be necessary to give notice of regular
meetings of the Board of Directors.
Section 2.5 Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President,
the Executive Committee, or by three (3) or more directors. Notice of a
special meeting of the Board of Directors shall be given by the person
or persons calling the meeting at least twenty-four hours before the
special meeting if such notice is given personally or by telephone or
sent by telegram, telecopier or other electronic means. Notice of a
special meeting of the Board of Directors shall be given by the person
or persons calling the meeting at least three days before the special
meeting if given by regular mail. No notice of a special meeting shall
be necessary if the time and place of the special meeting was set by
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resolution at a validly convened meeting of the Board of Directors.
The notice of a special meeting need not state the purpose or purposes
of the meeting.
Section 2.6 Telephonic Meetings Permitted. Members of the
Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting thereof 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 in a meeting pursuant to this by-law shall constitute
presence in person at such meeting.
Section 2.7 Quorum; Vote Required for Action. At all
meetings of the Board of Directors a majority of the whole Board of
Directors shall constitute a quorum for the transaction of business.
Except in cases in which the certificate of incorporation, these by-laws
or applicable law otherwise provides, the vote of a majority of the
directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors.
Section 2.8. Officers for Board Meetings. Meetings of the
Board of Directors shall be presided over by the Chairman of the
Board, if any, or in his absence by the Vice Chairman of the Board, if
any, or in his absence by the President, or in their absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of
the meeting, but in his absence the chair of the meeting may appoint
any person to act as secretary of the meeting.
Section 2.9. Independent Directors And Board Structure. A
majority of the Board of Directors shall be comprised of independent
directors. The Chief Executive Officer should be a member of the
Board of Directors. In order to ensure the greatest number of
independent directors on a board of manageable size, other direct
management representation should be kept to a minimum and should in
no event exceed two other management directors.
The Board of Directors shall make clear to Senior Management
of the Company that board membership is neither necessary to their
present positions nor a prerequisite to a higher management position in
the Company. Attendance of management staff at Board Meetings
should be at the discretion of the Chairman of the Board but should be
encouraged by the Board. The Board shall have full and direct access to
members of Senior Management and should be encouraged to request
reports directly to the Board by any member of Senior Management.
Board members should use judgment in dealings with management so
that they do not distract management from the business operations of
the Company.
Conflicts of Interest. A director's personal financial or family
relationships may occasionally give rise to that director's material
personal interest in a particular issue. There will be times when a
director's material personal interest in an issue will limit that director's
ability to vote on that issue. The Governance Committee of the Board
of Directors shall determine whether such a conflict of interest exists on
a case-by-case basis, including the determination as to materiality under
items (c) and (f) of this Section 2.9. The Governance Committee shall
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take appropriate steps to identify such potential conflicts and to ensure
that a majority of the directors voting on an issue are both disinterested
and independent with respect to that issue. A determination by the
Governance Committee on any issue of independence or conflict of
interest shall be final and not subject to review.
For purposes of this Section, an "independent director" means a
director who: (a) is neither a current employee nor a former member of
Senior Management of the Company or an Affiliate; (b) is not
employed by a provider of professional services to the Company; (c)
does not have any business relationship with the Company, either
personally or through a company of which the director is an officer or a
controlling shareholder, that is material to the Company or to the
director; (d) does not have a close family relationship, by blood,
marriage or otherwise with any member of Senior Management of the
Company or one of the Company's Affiliates; (e) is not an officer of a
company of which the Company's chairman or chief executive officer
is also a board member; or (f) does not personally receive or is not an
employee of a foundation, university, or other institution that receives
grants or endowments from the Company, that are material to the
Company or to either the recipient and/or the foundation, university, or
institution.
"Senior Management" includes the chief executive, chief
operating, chief financial, chief legal and chief accounting officers,
president, vice president(s), treasurer, secretary and the controller of the
Company.
"Affiliate" includes any person or entity which, alone or by
contractual obligation, owns or has the power to vote more than twenty-
five (25) percent of the equity interest in another, unless some other
person or entity acting alone or with another by contractual obligation
owns or has the power to vote a greater percentage of the equity
interest. A subsidiary is considered an affiliate if it is at least eighty
(80) percent owned by the Company and accounts for at least twenty-
five (25) percent of the Company's consolidated sales or assets.
Section 2.10 Action by Written Consent of Directors. Unless
otherwise restricted 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 members of the Board of Directors or such 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 such committee.
Section 2.11 Committees. The Board of Directors may
designate one or more committees, each committee to consist of one 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 replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of the
committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or
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disqualified member. Any such committee, to the extent permitted by
law and to the extent provided in the resolution of the Board of
Directors, 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 which may require it.
Section 2.12. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board of
Directors may make, alter and repeal rules for the conduct of its
business. In the absence of such rules each committee shall conduct its
business in the same manner as the Board of Directors conducts its
business pursuant to Article II hereof.
Section 2.13. Executive Committee. There shall be an
Executive Committee to consist of such number of directors of the
Board of Directors (the "Executive Committee") to consist of that
number of directors as the Board of Directors may from time to time
determine. The Board of Directors shall have power at any time to
change the number of the Executive Committee, except that a reduction
in the number of members of the Executive Committee shall not affect
any currently serving member. The Board of Directors may remove
any member of the Executive Committee at any time with or without
cause and may fill vacancies in the Committee by election from the
members of the Board of Directors.
When the Board of Directors is not in session, the Executive
Committee shall have and may exercise all the power and authority of
the Board of Directors in the management and direction of the business
and affairs of the Corporation, and shall have power to authorize the
seal of the Corporation to be affixed to all papers which may require it.
All actions of the Executive Committee shall be reported to the Board
of Directors at the meeting next succeeding such action, provided,
however, that such report need not be made to the Board of Directors if
prior to such meeting copies of the written minutes of the meetings of
the Executive Committee at which such action has been taken shall
have been mailed or delivered to all members of the Board of Directors.
ARTICLE III.
OFFICERS.
Section 3.1 Executive Officers; Election; Qualifications; Term
of Office; Resignation; Removal; Vacancies. The Board of Directors
shall elect a President and Secretary, and it may, if it so determines,
choose a Chairman of the Board and a Vice Chairman of the Board
from among its members. The Board of Directors may also choose one
or more Vice Presidents, one or more Assistant Secretaries, a Treasurer
and one or more Assistant Treasurers. Each such officer shall hold
office until the first meeting of the Board of Directors after the annual
meeting of stockholders next succeeding his election, and until his
successor is elected and qualified or until his earlier resignation or
removal. Any officer may resign at any time upon written notice to the
Corporation. Such resignation need not be accepted to be effective.
The Board of Directors may remove any officer with or without cause
at any time, but such removal shall be without prejudice to the
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contractual rights of such officer, if any, with the Corporation. Any
number of offices may be held by the same person. Any vacancy
occurring in any office of the Corporation by death, resignation,
removal or otherwise may be filled for the unexpired portion of the
term by the Board of Directors.
Section 3.2 Powers and Duties of Executive Officers. The
officers of the Corporation shall have such powers and duties in the
management of the Corporation as may be prescribed in a resolution by
the Board of Directors and, to the extent not so provided, as generally
pertain to their respective offices, subject to the control of the Board of
Directors. The Board of Directors may require any officer, agent or
employee to give security for the faithful performance of his duties.
ARTICLE IV.
SHARES OF STOCK.
Section 4.1 Certificates. Every holder of stock shall be entitled
to have a certificate signed by or in the name of the Corporation by the
Chairman or Vice Chairman of the Board of Directors, if any, or the
President or a Vice President, and 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. Any
of or all the signatures 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 4.2 Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The Corporation may issue a new
certificate of stock in the place of any certificate theretofore issued by
it, alleged to have been lost, stolen or destroyed, and the Corporation
may require the owner of the lost, stolen or destroyed certificate, or his
legal representative, to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on account
of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
ARTICLE V.
MISCELLANEOUS PROVISIONS.
Section 5.1 Fiscal Year. The fiscal year of the Corporation
shall be determined by resolution of the Board of Directors.
Section 5.2 Seal. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form as may be
approved from time to time by the Board of Directors.
Section 5.3. Signature of Checks, etc. All checks and drafts on
the bank accounts of the Corporation, and all bills of exchange and
promissory notes, and all acceptances, obligations and other
instruments for the payment of money shall be signed by such officer or
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officers, or agent or agents, as shall be thereunto authorized, from time
to time, by the Board of Directors or the Executive Committee.
Section 5.4 Waiver of Notice of Meetings of Stockholders,
Directors and Committees. Any written waiver of notice, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the
business to be transacted at nor the purpose of any regular or special
meeting of the stockholders, directors, or members of a committee of
directors need be specified in any written waiver of notice.
Section 5.5 Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its stock
ledger, books of account, and minute books, may be kept on, or be in
the form of, punch cards, magnetic tape, photographs,
microphotographs, or any other information storage device, provided
that the records so kept can be converted into clearly legible form
within a reasonable time.
Section 5.6 Amendment of By-laws. These by-laws may be
altered, amended or repealed, and new by-laws made, by the Board of
Directors, but the stockholders may make additional by-laws and may
alter and repeal any by-laws whether adopted by them or otherwise.
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS, OFFICERS OR OTHER
PERSONS.
Section 6.1 Right to Indemnification. The Corporation shall
indemnify and hold harmless, to the fullest extent permitted by
applicable law as it presently exists or may hereafter be amended, any
person (a "Covered Person") who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that he, or a person for whom he is
the legal representative, is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, 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,
enterprise or nonprofit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and
expenses (including attorneys' fees) reasonably incurred by such
Covered Person. Notwithstanding the preceding sentence, except as
otherwise provided in Section 6.3, the Corporation shall be required to
indemnify a Covered Person in connection with a proceeding (or part
thereof) commenced by such Covered Person only if the
commencement of such proceeding (or part thereof) by the Covered
Person was authorized by the Board of Directors of the Corporation.
Section 6.2 Prepayment of Expenses. The Corporation shall
pay the expenses (including attorneys' fees) incurred by a Covered
<page> 21
Person in defending any proceeding in advance of its final disposition,
provided, however, that, to the extent required by law, such payment of
expenses in advance of the final disposition of the proceeding shall be
made only upon receipt of an undertaking by the Covered Person to
repay all amounts advanced if it should be ultimately determined that
the Covered Person is not entitled to be indemnified under this Article
VI or otherwise.
Section 6.3 Claims. If a claim for indemnification or
advancement of expenses under this Article VI is not paid in full within
thirty days after a written claim therefor by the Covered Person has
been received by the Corporation, the Covered Person may file suit to
recover the unpaid amount of such claim and, if successful in whole or
in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden of
proving that the Covered Person is not entitled to the requested
indemnification or advancement of expenses under applicable law.
Section 6.4 Nonexclusivity of Rights. The rights conferred on
any Covered Person by this Article VI shall not be exclusive of any
other rights which such Covered Person may have or hereafter acquire
under any statute, provision of the certificate of incorporation, these by-
laws, agreement, vote of stockholders or disinterested directors or
otherwise.
Section 6.5 Other Sources. The Corporation's obligation, if
any, to indemnify or to advance expenses to any Covered Person who
was or is serving at its request as a director, officer, employee or agent
of another Corporation, partnership, joint venture, trust, enterprise or
nonprofit entity shall be reduced by any amount such Covered Person
may collect as indemnification or advancement of expenses from such
other Corporation, partnership, joint venture, trust, enterprise or non-
profit enterprise.
Section 6.6 Amendment or Repeal. Any repeal or modification
of the foregoing provisions of this Article VI shall not adversely affect
any right or protection hereunder of any Covered Person in respect of
any act or omission occurring prior to the time of such repeal or
modification.
Section 6.7. The rights conferred on any Covered Person by
this Article VI are contract rights and shall continue as to a person who
has ceased to be a director or officer and shall inure the benefit of the
person's heirs, executors and administrators.
Section 6.8. Other Indemnification and Prepayment of
Expenses. This Article VI shall not limit the right of the Corporation,
to the extent and in the manner permitted by law, to indemnify and to
advance expenses to persons other than Covered Persons when and as
authorized by appropriate corporate action.