EXHIBIT 3.6
B Y - L A W S
OF
IMPAX LABORATORIES, INC.
(a Delaware corporation)
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ARTICLE I
OFFICES
SECTION 1. OFFICES. The Corporation shall maintain its registered
office in the State of Delaware at 32 Loockerman Square, Suite L-l00, in the
County of Kent, and its resident agent at such address is the Prentice-Hall
Corporation System, Inc. The Corporation may also have offices in such other
places in the United States or elsewhere as the Board of Directors may, from
time to time, appoint or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the
election of directors and for such other business as may properly be conducted
at such meeting shall be held at such place, either within or without the State
of Delaware, and at such time and date as the Board of Directors shall determine
by resolution and set forth in the notice of the meeting. In the event that the
Board of Directors fails to so determine the time, date and place for the annual
meeting, it shall be held, beginning in 1996, at the principal office of the
Corporation at 10 o'clock A.M. on the last Friday in March of each year.
SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders, unless
otherwise prescribed by statute, may be called by the Chairman of the Board, the
Chief
Executive Officer or by resolution of the Board of Directors and shall be
called by the Chief Executive Officer or Secretary upon the written request of
not less than 10% in interest of the stockholders entitled to vote thereat.
Notice of each special meeting shall be given in accordance with Section 3 of
this Article II. Unless otherwise permitted by law, business transacted at any
special meeting of stockholders shall be limited to the purpose stated in the
notice.
SECTION 3. NOTICE OF MEETINGS. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting,
which shall state the place, date and time of the meeting, and, in the case of a
special meeting, the purposes for which the meeting is called, shall be mailed
to or delivered to each stockholder of record entitled to vote thereat. Such
notice shall be given not less than ten (10) days nor more than sixty (60) days
before the date of any such meeting.
SECTION 4. QUORUM. Unless otherwise required by law or the Certificate
of Incorporation, the holders of a majority of the issued and outstanding stock
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum for the transaction of business at all meetings of
stockholders.
SECTION 5. VOTING. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall be entitled to one vote for each share of
capital stock held by such stockholder. Upon the request of not less than l0% in
interest of the stockholders entitled to vote at a meeting, voting shall be by
written ballot. All elections of directors shall be decided by plurality vote.
Unless otherwise required by law, these By-Laws or the Certificate of
Incorporation, all other corporate action shall be decided by majority vote.
SECTION 6. INSPECTORS. The Board of Directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any
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adjournment thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting may, or if inspectors shall not have
been appointed, the chairman of the meeting shall, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the results, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for the office
of director shall act as an inspector of an election of directors.
SECTION 7. CHAIRMAN OF MEETINGS. The Chairman of the Board of Directors
of the Corporation, if one is elected, or, in his absence or disability, the
Chief Executive Officer of the Corporation, shall preside at all meetings of the
stockholders.
SECTION 8. SECRETARY OF MEETING. The Secretary of the Corporation shall
act as Secretary at all meetings of the stockholders. In the absence or
disability of the Secretary, the Chairman of the Board of Directors or the Chief
Executive Officer shall appoint a person to act as Secretary at such meetings.
SECTION 9. LISTS OF STOCKHOLDERS. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days before
every meeting of
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stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, showing the address of each stockholder
and the number and class of shares held by each. 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 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
meeting and may be inspected by any stockholder who is present.
SECTION 10. ACTION WITHOUT MEETING. Unless otherwise provided by the
Certificate of Incorporation, any action required by law to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
such meetings, may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote were present and voted. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
SECTION 11. ADJOURNMENT. At any meeting of stockholders of the
Corporation, if less than a quorum be present, a majority of the stockholders
entitled to vote thereat, present in person or by proxy, shall have the power to
adjourn the meeting from time to time without notice other than announcement at
the meeting until a quorum shall be present. Any business may be transacted at
the adjourned meeting which might have been transacted at the meeting originally
noticed. If the adjournment is for more than thirty days, or if after the
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adjournment a new record date, as provided for in Section 5 of Article V of
these By-Laws, is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWERS. The property, business and affairs of the
Corporation shall be managed and controlled by its Board of Directors. The Board
shall exercise all of the powers and duties conferred by law except as provided
by the Certificate of Incorporation or these By-Laws.
SECTION 2. NUMBER AND TERM. The number of directors shall be fixed at
no less than one nor more than ten. Within the limits specified above, the
number of directors shall be fixed from time to time by the Board. The Board of
Directors shall be elected by the stockholders at their annual meeting, and each
director shall be elected to serve for the term of one year and until his
successor shall be elected and qualify or until his earlier resignation or
removal. Directors need not be stockholders.
SECTION 3. RESIGNATIONS. Any director may resign at any time. Such
resignation shall be made in writing, and shall take effect at the time
specified therein, and if no time is specified, at the time of its receipt by
the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective.
SECTION 4. REMOVAL. Subject to any written agreement among all of the
Stockholders of the Corporation, any director or the entire Board of Directors
may be removed either for or without cause at any time by the affirmative vote
of the holders of a majority of the shares entitled to vote for the election of
directors at any annual or special meeting of the
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stockholders called for that purpose. Subject to any written agreement among all
of the Stockholders of the Corporation, vacancies thus created may be filled at
such meeting by the affirmative vote of a majority of the stockholders entitled
to vote or, if the vacancies are not so filled, by the directors as provided in
Section 5 of this Article III.
SECTION 5. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Except as
provided in Section 4 of this Article III, and subject to any written agreement
among all of the Stockholders of the Corporation, any vacancies occurring in any
directorship and newly created directorships may be filled by a majority vote of
the remaining directors then in office. Any director so chosen shall hold office
for the unexpired term of his predecessor and until his successor shall be
elected and qualify or until his earlier death, resignation or removal. The
Board may not fill the vacancy created by removal of a director by electing the
director so removed.
SECTION 6. MEETINGS. The newly elected directors shall hold their first
meeting to organize the Corporation, elect officers and transact any other
business which may properly come before the meeting. An annual organizational
meeting of the Board of Directors shall be held immediately after each annual
meeting of the stockholders, or at such time and place as may be noticed for the
meeting.
Regular meetings of the Board may be held without notice at such places
and times as shall be determined from time to time by resolution of the
directors.
Special meetings of the Board shall be called by the Chief Executive
Officer or by the Secretary on the written request of any director with at least
two days' notice to each director and shall be held at such place as may be
determined by the directors or as shall be stated in the notice of the meeting.
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SECTION 7. QUORUM VOTING AND ADJOURNMENT. A majority of the total
number of directors or any committee thereof shall constitute a quorum for the
transaction of business. 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. In the
absence of a quorum, a majority of the directors present thereat may adjourn
such meeting to another time and place. Notice of such adjourned meeting need
not be given if the time and place of such adjourned meeting are announced at
the meeting so adjourned.
SECTION 8. COMMITTEES. The Board of Directors may, by resolution passed
by a majority of the Board, designate one or more committees, including but not
limited to an Executive Committee and an Audit Committee, each such committee to
consist of one or more of the directors of the Corporation. The Board may
designate one or more directors as alternate members of any committee to replace
any absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution of the Board, 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; but no
such committee shall have the power or authority to amend the Certificate of
Incorporation, adopt an agreement of merger or consolidation, recommend to the
stockholders the sale, lease, or exchange of all or substantially all of the
Corporation's properties and assets, recommend to the stockholders a dissolution
of the Corporation or a revocation of a dissolution or to amend these By-Laws.
Unless a resolution of the Board expressly provides, no such committee shall
have the power or authority to declare a dividend or to authorize the issuance
of stock of the Corporation. All committees of the Board shall report their
proceedings to the Board when required.
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SECTION 9. ACTION WITHOUT A MEETING. 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 or any committee
thereof consent thereto in writing.
SECTION 10. COMPENSATION. The Board of Directors shall have the
authority to fix the compensation of directors for their services. A director
may also serve the Corporation in other capacities and receive compensation
therefor.
SECTION 11. TELEPHONIC MEETING. Unless otherwise restricted by the
Certificate of Incorporation, members of the Board, or any committee designated
by the Board, may participate in a meeting by means of conference telephone or
similar communications equipment in which all persons participating in the
meeting can hear each other. Participation in such telephonic meeting shall
constitute the presence in person at such meeting.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a
Chairman of the Board, a Chief Executive Officer, a President, a Chief Operating
Officer, a Chief Financial Officer, one or more Vice-Presidents, a Secretary, a
Treasurer and such other officers and assistant officers as the Board of
Directors may from time to time deem advisable. Except for the Chairman of the
Board, Chief Executive Officer, President, Chief Operating Officer, Chief
Financial Officer and Secretary, the Board may refrain from filling any of the
said offices at any time and from time to time. Any number of offices may be
held by the same person. The following officers shall be elected by the Board of
Directors at the time, in the manner and for such terms as the Board of
Directors from time to time shall determine: Chairman of the Board,
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Chief Executive Officer, President, Chief Operating Officer, Chief Financial
Officer and Secretary. The Chief Executive Officer may appoint such other
officers and assistant officers as he may deem advisable provided such officers
or assistant officers have a title no higher than Vice-President, who shall hold
office for such periods as the Chief Executive Officer shall determine.
SECTION 2. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a
member of the Board of Directors and shall preside at all meetings of the Board
of Directors and of the stockholders. In addition, the Chairman of the Board
shall have such powers and perform such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 3. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
have general supervision of all of the departments and business of the
Corporation; he or she shall prescribe the duties of the other officers and
employees and see to the proper performance thereof. The Chief Executive Officer
shall be responsible for having all orders and resolutions of the Board of
Directors carried into effect. The Chief Executive Officer shall execute on
behalf of the Corporation and may affix or cause to be affixed a seal to all
authorized documents and instruments requiring such execution, except to the
extent that signing and execution thereof shall have been delegated to some
other officer or agent of the Corporation by the Board of Directors or by the
Chief Executive Officer. The Chief Executive Officer shall be a member of the
Board of Directors. In the absence or disability of the Chairman of the Board or
his or her refusal to act, the Chief Executive Officer shall preside at meetings
of the Board. In general, the Chief Executive Officer shall perform all the
duties and exercise all the powers and authorities incident to his or her office
or as prescribed by the Board of Directors.
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SECTION 4. PRESIDENT. The President shall perform such duties as
customarily pertain to the office of President or are prescribed by the Board of
Directors or Chief Executive Officer. In the absence, disability or refusal of
the Chief Executive Officer to act, or the vacancy of such office, the President
shall perform the duties and have the powers and authorities of the Chief
Executive Officer.
SECTION 5. CHIEF OPERATING OFFICER. The Chief Operating Officer shall
perform such duties as customarily pertain to the office of Chief Operating
Officer or are prescribed by the Board of Directors, Chief Executive Officer or
President. In the absence, disability or refusal of the President to act, or the
vacancy of such office, the Chief Operating Officer shall perform the duties and
have the powers and authorities of the President.
SECTION 6. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
be the principal financial and accounting officer of the Corporation and shall
have such other duties as may be prescribed by the Board of Directors, Chief
Executive Officer or President.
SECTION 7. VICE PRESIDENTS. Each Vice President, if any are elected, of
whom one or more may be designated an Executive and/or Senior Vice President,
shall have such powers, shall perform such duties and shall be subject to such
supervision as may be prescribed by the Board of Directors, the Chief Executive
Officer, the President or the Chief Operating Officer. In the event of the
absence or disability of the Chief Executive Officer or the President or their
refusal to act, the Vice-Presidents, in the order of their rank, and within the
same rank in the order of their seniority, shall perform the duties and have the
powers and authorities of the Chief Executive Officer and President, except to
the extent inconsistent with applicable law.
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SECTION 8. TREASURER. The Treasurer, if one is elected, shall have
custody of the corporate funds, securities, evidences of indebtedness and other
valuables of the Corporation and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation. He shall
deposit all moneys and other valuables in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the Corporation, taking proper
vouchers therefor. He shall render to the Chief Executive Officer and the Board
of Directors, upon their request, a report of the financial condition of the
Corporation. If required by the Board of Directors, he shall give the
Corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the Board shall prescribe. The Treasurer shall have such
further powers and perform such other duties incident to the office of Treasurer
as from time to time are assigned to him by the Board.
SECTION 9. SECRETARY. The Secretary shall be the Chief Administrative
Officer of the Corporation and shall: (a) cause minutes of all meetings of the
stockholders and directors to be recorded and kept; (b) cause all notices
required by these By-Laws or otherwise to be given properly; (c) see that the
minute books, stock books, and other nonfinancial books, records and papers of
the Corporation are kept properly; and (d) cause all reports, statements,
returns, certificates and other documents to be prepared and filed when and as
required. The Secretary shall keep a seal of the Corporation, and, when
authorized by the Board of Directors, Chief Executive Officer or the President,
cause the seal to be affixed to any documents and instruments requiring it. The
Secretary shall act under the supervision of the Chief Executive Officer and
President or such other officer as the Chief Executive Officer or President may
designate. The Secretary shall have such further powers and perform such other
duties as
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prescribed from time to time by the Board of Directors, Chief Executive Officer,
President or such other supervising officer as the Chief Executive Officer or
President may designate.
SECTION 10. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Each
Assistant Treasurer and each Assistant Secretary, if any are elected, shall be
vested with all the powers and shall perform all the duties of the Treasurer and
Secretary, respectively, in the absence or disability of such officer, unless or
until the Board of Directors shall otherwise determine. In addition, Assistant
Treasurers and Assistant Secretaries shall have such powers and shall perform
such duties as shall be assigned to them by the Board.
SECTION 11. CORPORATE FUNDS AND CHECKS. The funds of the Corporation
shall be kept in such depositories as shall from time to time be prescribed by
the Board of Directors. All checks or other orders for the payment of money
shall be signed by the Chief Executive Officer, President or Chief Financial
Officer or such other person or agent as may from time to time be authorized and
with such countersignature, if any, as may be required by the Board of
Directors.
SECTION 12. CONTRACTS AND OTHER DOCUMENTS. The Chief Executive Officer
or President, or such other officer or officers as may from time to time be
authorized by the Board of Directors, shall have power to sign and execute on
behalf of the Corporation deeds, conveyances and contracts, and any and all
other documents requiring execution by the Corporation.
SECTION 13. OWNERSHIP OF STOCK OF ANOTHER CORPORATION. The Chief
Executive Officer or President, or such other officer or agent as shall be
authorized by the Board of Directors, shall have the power and authority, on
behalf of the Corporation, to attend and to vote at any meeting of stockholders
of any corporation in which the Corporation
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holds stock and may exercise, on behalf of the Corporation, any and all of the
rights and powers incident to the ownership of such stock at any such meeting,
including the authority to execute and deliver proxies and consents on behalf of
the Corporation.
SECTION 14. DELEGATION OF DUTIES. In the absence, disability or refusal
of any officer to exercise and perform his duties, the Board of Directors may
delegate to another officer such powers or duties.
SECTION 15. RESIGNATION AND REMOVAL. Any officer of the Corporation may
be removed from office for or without cause at any time by the Board of
Directors and regardless of the term for which such officer was elected. Any
officer may resign at any time in the same manner prescribed under Section 3 of
Article III of these By-Laws.
SECTION 16. VACANCIES. The Board of Directors shall have power to fill
vacancies occurring in any office.
ARTICLE V
STOCK
SECTION 1. CERTIFICATES OF STOCK. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation by, the Chairman of the Board, the Chief Executive Officer or
the President or a Vice President and by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary, certifying the number and class of
shares of stock in the Corporation owned by him. Any or all of the signatures on
the certificate may be a facsimile. The Board of Directors shall have the power
to appoint one or more transfer agents and/or registrars for the transfer or
registration of certificates of stock of any class, and may require stock
certificates to be countersigned or registered by one or more of such transfer
agents and/or registrars.
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SECTION 2. TRANSFER OF SHARES. Shares of stock of the Corporation shall
be transferable upon its books by the holders thereof, in person or by their
duly authorized attorneys or legal representatives, upon surrender to the
Corporation by delivery thereof to the person in charge of the stock and
transfer books and ledgers. Such certificates shall be cancelled and new
certificates shall thereupon be issued. A record shall be made of each transfer.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented, both the transferor and transferee request the
Corporation to do so. The Board shall have power and authority to make such
rules and regulations as it may deem necessary or proper concerning the issue,
transfer and registration of certificates for shares of stock of the
Corporation.
SECTION 3. LOST CERTIFICATES. A new certificate of stock may be issued
in the place of any certificate previously issued by the Corporation, alleged to
have to have been lost, stolen, destroyed or mutilated, and the Board of
Directors may, in their discretion, require the owner of such lost, stolen,
destroyed or mutilated certificate, or his legal representative, to give the
Corporation a bond, in such sum as the Board may direct, not exceeding double
the value of the stock, in order to indemnify the Corporation against any claims
that may be made against it in connection therewith.
SECTION 4. STOCKHOLDERS OF RECORD. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder
thereof, in fact, and shall not be bound to recognize any equitable or other
claim to or interest in such shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise expressly
provided by law.
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SECTION 5. STOCKHOLDERS 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 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 a
record date, which shall not be more than sixty days nor less than ten days
before the date of such meeting. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting, provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
SECTION 6. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may at any regular or social meeting, out
of funds legally available therefor, declare dividends upon the stock of the
Corporation. Before the declaration of any dividend, the Board of Directors may
set apart, out of any funds of the Corporation available for dividends, such sum
or sums as from time to time in their discretion may be deemed proper for
working capital or as a reserve fund to meet contingencies or for such other
purposes as shall be deemed conducive to the interests of the Corporation.
SECTION 7. FRACTIONAL SHARE. The Company shall have the complete
discretion to issue fractional shares.
ARTICLE VI
NOTICE AND WAIVER OF NOTICE
SECTION 1. NOTICE. Whenever any written notice is required to be given
by law, the Certificate of Incorporation or these By-Laws, such notice, if
mailed, shall be deemed to
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be given when deposited in the United States mail, postage prepaid,
addressed to the person entitled to such notice at his address as it appears in
the books and records of the Corporation. Such notice may also be sent by
telegram.
SECTION 2. WAIVER OF NOTICE. Whenever notice is required to be given by
law, the Certificate of Incorporation or these By-Laws, a written waiver thereof
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 meeting of the stockholders, directors, or members of a
committee of the Board need be specified in any written waiver of notice.
ARTICLE VII
AMENDMENT OF BY-LAWS
SECTION 1. AMENDMENTS. These By-Laws may be amended or repealed or new
By-Laws may be adopted by the affirmative vote of a majority of the Board of
Directors at any regular or special meeting of the Board. If any By-Law
regulating an impending election of directors is adopted, amended or repealed by
the Board, there shall be set forth in the notice of the next meeting of
shareholders for the election of directors the By-Law(s) so adopted, amended, or
repealed, together with a precise statement of the changes made. By-Laws adopted
by the Board of Directors may be amended or repealed by shareholders.
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ARTICLE VIII
SECTION 1. SEAL. The seal of the Corporation shall be circular in form
and shall have the name of the Corporation on the circumference and the
jurisdiction and year of incorporation in the center.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall end on
December 31 of each year, or such other twelve consecutive months as the Board
of Directors may designate.
ARTICLE IX
INDEMNIFICATION
SECTION 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 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 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 person. The Corporation
shall be required to indemnify a person in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
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SECTION 2. PREPAYMENT OF EXPENSES. The Corporation shall pay the
expenses (including attorneys' fees) incurred in defending any proceeding in
advance of its final disposition, provided, however, that the payment of
expenses incurred by a director or officer in advance of the final disposition
of the proceeding shall be made only upon receipt of an undertaking by the
director or officer to repay all amounts advanced if it should be ultimately
determined that the director or officer is not entitled to be indemnified under
this Article or otherwise.
SECTION 3. CLAIMS. If a claim for indemnification or payment of
expenses under this Article is not paid in full within sixty days (60) after a
written claim therefor has been received by the Corporation, the claimant 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
claimant was not entitled to the requested indemnification or payment of
expenses under applicable law.
SECTION 4. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this Article IX shall not be exclusive of any other rights which such
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 5. OTHER INDEMNIFICATION. The Corporation's obligation, if any,
to indemnify any 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 person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
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SECTION 6. INSURANCE. The Board of Directors may authorize, by a vote
of a majority of a quorum of the Board of Directors, the Corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, member, employee or agent of
another corporation, partnership, joint venture, trust 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 this Article IX or of the General Corporation Law of the State of
Delaware.
SECTION 7. DEFINITIONS. For the purposes of this Article IX, references
to "the Corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this
Article IX with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued. For purposes of this Article IX, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes
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duties on, or involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the Corporation" as referred to in this Article IX.
SECTION 8. LIABILITY OF DIRECTORS. No director of the Corporation shall
be personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director; provided, however, that this,
limitation shall not eliminate or limit the liabilities of the directors for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, under Section 174 of the General Corporation Law
of the State of Delaware, or for any transaction from which the director derived
art improper personal benefit; provided further, that this limitation shall not
eliminate or limit the liability of a director for any act or omission occurring
prior to the adoption of these By-Laws.
SECTION 9. AMENDMENT OR REPEAL. Any repeal or modification of the
foregoing provisions of this Article IX shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
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