Exhibit 3.3
EpiCept Corporation
270 Sylvan Avenue
Englewood Cliffs, New Jersey 07632
EPICEPT CORPORATION
SECOND AMENDED AND RESTATED BYLAWS
OCTOBER 17, 2001
TABLE OF CONTENTS
PAGE
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ARTICLE I. OFFICES...........................................................1
Section 1.01 Registered Office............................................1
Section 1.02 Additional Offices...........................................1
ARTICLE II. MEETINGS OF STOCKHOLDERS.........................................1
Section 2.01 Time and Place...............................................1
Section 2.02 Annual Meeting...............................................1
Section 2.03 Notice of Annual Meeting.....................................2
Section 2.04 Special Meeting..............................................2
Section 2.05 Notice of Special Meeting....................................2
Section 2.06 List of Stockholders.........................................2
Section 2.07 Presiding Officer............................................3
Section 2.08 Quorum and Adjournments......................................3
Section 2.09 Voting.......................................................4
ARTICLE III. DIRECTORS.......................................................4
Section 3.01 Number and Tenure ...........................................5
Section 3.02 Vacancies and Newly Created Directorships....................5
Section 3.03 Resignation..................................................5
Section 3.04 Place of Meetings............................................6
Section 3.05 Agenda for Meetings..........................................6
Section 3.06 Annual Meeting...............................................6
Section 3.07 Regular Meetings.............................................6
Section 3.08 Special Meetings.............................................6
Section 3.09 Quorum and Adjournments......................................7
Section 3.10 Presiding Officer............................................7
Section 3.11 Action by Vote...............................................7
Section 3.12 Action by Consent............................................7
Section 3.13 Telephone Meetings...........................................8
Section 3.14 Compensation.................................................8
ARTICLE IV. COMMITTEES.......................................................8
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Section 4.01 Committees of Directors......................................8
Section 4.02 Minutes of Committee Meetings................................9
Section 4.03 Quorum......................................................10
Section 4.04 Vacancies, Changes, and Discharge...........................10
Section 4.05 Compensation................................................10
ARTICLE V. NOTICES..........................................................10
Section 5.01 Form and Delivery...........................................10
Section 5.02 Waiver......................................................11
ARTICLE VI. OFFICERS........................................................11
Section 6.01 Designations................................................11
Section 6.02 Term of Office and Removal..................................12
Section 6.03 Compensation................................................12
Section 6.04 Chief Executive Officer.....................................12
Section 6.05 The President...............................................12
Section 6.06 The Vice President..........................................13
Section 6.07 The Secretary...............................................13
Section 6.08 The Assistant Secretary.....................................14
Section 6.09 The Treasurer...............................................14
Section 6.10 The Assistant Treasurer.....................................14
Section 6.11 Chairman of the Board.......................................15
Section 6.12 Transfer of Authority.......................................15
ARTICLE VII. STOCK CERTIFICATES.............................................15
Section 7.01 Form and Signatures.........................................15
Section 7.02 Registration of Transfer....................................15
Section 7.03 Registered Stockholders.....................................16
ARTICLE VIII. INDEMNIFICATION...............................................16
Section 8.01 Directors, Officers, Employees or Agents....................16
ARTICLE IX. GENERAL PROVISIONS..............................................19
Section 9.01 Fiscal Year.................................................19
Section 9.02 Seal........................................................20
ARTICLE X. AMENDMENTS.......................................................20
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EPICEPT CORPORATION
SECOND AMENDED AND RESTATED BYLAWS
ARTICLE I.
OFFICES
Section 1.01 Registered Office. The registered office of EpiCept
Corporation (hereinafter referred to as the "Corporation") shall be in the City
of Wilmington, County of New Castle, State of Delaware, or at such other
location as the Board of Directors may from time to time determine.
Section 1.02 Additional Offices. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors may from time to time determine. ARTICLE II..
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 2.01 Time and Place. Subject to the Corporation's Certificate of
Incorporation, as amended and/or restated (the "Certificate of Incorporation"),
and these Bylaws, all meetings of stockholders for the election of Directors or
for any other purpose shall be held at such time and place, either within or
without the State of Delaware, as shall be designated and called from time to
time by the Board of Directors and stated in the notice of the meeting delivered
by the Board of Directors to the stockholders, or in a duly executed waiver of
notice of the meeting by the appropriate stockholders.
Section 2.02 Annual Meeting. Annual meetings of the stockholders may only
be called by the Board of Directors. Annual meetings of stockholders shall be
held for the purpose of electing a Board of Directors and transacting such other
business as may properly be brought
before the meeting.
Section 2.03 Notice of Annual Meeting. Written notice of the annual
meeting, stating the place, date and time of such annual meeting, shall be given
by the Board of Directors to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days prior to the meeting.
Section 2.04 Special Meeting. Subject to the Certificate of Incorporation,
special meetings of the stockholders, for any purpose or purposes, may be called
by the Board of Directors or at 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 special meeting. In the notice of the
special meeting, the Board of Directors shall state the purpose or purposes of
the proposed special meeting. The Board of Directors shall cause notice of the
special meeting to be given to the stockholders in accordance with the
provisions of Section 2.05 and of Article V.
Section 2.05 Notice of Special Meeting. Written notice of a special
meeting, stating the place, date and time of such special meeting and the
purpose or purposes for which the meeting is called, shall be delivered to the
last address on record of each stockholder not less than ten (10) (unless a
longer period is required by law) nor more than sixty (60) days prior to the
meeting.
Section 2.06 List of Stockholders. The Officer in charge of the stock
ledger of the Corporation or the transfer agent 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
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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, at a place
within the city where the meeting is to be held. Such place, if other than the
place of the meeting, shall be specified in the notice of the meeting. The list
shall also be produced and kept at the time and place of the meeting during the
whole time of the meeting and may be inspected by any stockholder who is
present.
Section 2.07 Presiding Officer. Meetings of stockholders shall be presided
over by the Chief Executive Officer, or, if the Chief Executive Officer is not
present, by the Chairman of the Board, or, if the Chairman of the Board is not
present, by such person who may have been chosen by the Board of Directors. The
Secretary of the Corporation, or, if the Secretary is not present, an Assistant
Secretary, or, if an Assistant Secretary is not present, such person as may be
chosen by the Board of Directors, shall act as secretary of meetings of
stockholders.
Section 2.08 Quorum and Adjournments. The holders of a majority of the
shares of capital stock of the Corporation issued and outstanding and entitled
to vote at stockholders meetings, present in person or represented by proxy,
shall be necessary to, and shall constitute a quorum for, the transaction of
business at all meetings of the stockholders, except as otherwise provided by
statute or by the Certificate of Incorporation. The stockholders present or in
person or represented by proxy at a duly organized meeting may continue to do
business until final adjournment of such meeting whether on the same day or on a
later day, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum. If a meeting cannot be organized because a quorum has not
attended, those present in person or represented by proxy may adjourn the
meeting from time to time, until a quorum shall be present or represented.
Notice of the adjourned meeting need not be given if the time and place of the
adjourned meeting are announced at the meeting at which the adjournment is
taken. Even if a quorum shall be
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present or represented at any meeting of the stockholders, the stockholders
entitled to vote at such meeting, present in person or represented by proxy, may
adjourn the meeting from time to time without notice of the adjourned meeting if
the time and place of the adjourned meeting are announced at the meeting at
which the adjournment is taken, until a date which is not more than thirty (30)
days after the date of the original meeting. At any adjourned meeting at which a
quorum is present in person or represented by proxy any business may be
transacted which might have been transacted at the meeting as originally called.
If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at such meeting.
Section 2.09 Voting.
(a) At any meeting of stockholders, every stockholder having the
right to vote shall be entitled to vote in person or by proxy, but no such proxy
shall be voted or acted upon after three (3) years from its date, unless the
proxy provides for a longer period. Except as otherwise provided by law or the
Certificate of Incorporation, each stockholder of record shall be entitled to
one (1) vote for each share of capital stock registered in his name on the books
of the Corporation.
(b) At a meeting at which a quorum is present, all elections of
Directors shall be determined by a plurality vote and, except as otherwise
provided by law or the Certificate of Incorporation, all other matters shall be
determined by a vote of a majority of the shares present in person or
represented by proxy and entitled to vote on such other matters.
ARTICLE III.
DIRECTORS
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Section 3.01 Number and Tenure.(a) Subject to the provisions of the
Certificate of Incorporation and any Voting Agreement by and among the
Corporation and its stockholders then in effect (the "Voting Agreement"), the
number of Directors shall be determined by the Board, and each Director elected
shall hold office until his successor is duly elected and shall qualify. Subject
to the provisions of the Certificate of Incorporation and the Voting Agreement,
a Director shall be elected and may be removed, with or without cause, at a duly
called annual or special meeting of stockholders by the holders of a majority of
the stock issued and outstanding and entitled to vote on such action. No
Director resigning and no Director removed shall have any right to receive
compensation as such Director for any period following his resignation or
removal, except where a right to receive compensation shall be expressly
provided in a duly authorized written agreement with the Corporation.
Section 3.02 Vacancies and Newly Created Directorships. Subject to the
provisions of the Certificate of Incorporation and the Voting Agreement, if any
vacancies shall occur in the Board of Directors by reason of death, resignation,
removal or otherwise, or if the authorized number of Directors shall be
increased, the Directors then in office shall continue to act, and such
vacancies and newly created directorships may be filled by a majority of the
Directors then in office, although less than a quorum, or by a sole remaining
Director. A Director elected to fill a vacancy or a newly created directorship
shall hold office until such Director's successor has been elected and qualified
or until such Director's earlier death, resignation or removal. If there are no
Directors in office, any Officer may call a special meeting of stockholders in
accordance with the provisions of the Certificate of Incorporation or these
Bylaws, at which meeting such vacancies shall be filled subject to the Voting
Agreement.
Section 3.03 Resignation. Any Director may resign at any time by giving
written
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notice to the Chief Executive Officer, the President or the Secretary of the
Corporation, or, in the absence of all of the foregoing, by notice to any other
Director or Officer of the Corporation. Unless otherwise specified in such
written notice, a resignation shall take effect upon delivery to the designated
Director or Officer. It shall not be necessary for a resignation to be accepted
before it becomes effective.
Section 3.04 Place of Meetings. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 3.05 Agenda for Meetings. The Chief Executive Officer or, if no
such Officer is in office, the Chairman of the Board, shall prepare the Agenda
for all meetings, including all Special Meetings (only if an Agenda exists) and
Regular Meetings. Such Officer shall deliver the Agenda for a Board meeting to
all members of the Board of Directors prior to the commencement of such meeting,
but in no event on less than two (2) hours notice to each Board member.
Section 3.06 Annual Meeting. Unless otherwise agreed by the newly elected
Directors, the annual meeting of each newly elected Board of Directors shall be
held immediately following the annual meeting of stockholders, and no notice of
such meeting to either incumbent or newly elected Directors shall be necessary.
Section 3.07 Regular Meetings. Regular meetings of the Board of Directors
may be held upon fourteen (14) calendar days' notice to all Directors, at such
time and place as may from time to time be determined by the Board of Directors.
Section 3.08 Special Meetings. Special Meetings of the Board of Directors
may be called by the Chief Executive Officer or the Chairman of the Board on two
(2) hours notice to
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each Director, if such Special Meeting is to be conducted by means of conference
telephone or similar communications equipment in accordance with Section 3.13,
and otherwise, upon six (6) hours notice if such notice is delivered personally
or sent by facsimile. Special Meetings shall be called by the Chief Executive
Officer or the Chairman of the Board in like manner and on like notice on the
written request of three or more of the Directors then in office. The purpose of
a Special Meeting of the Board of Directors need not be stated in the notice of
such meeting.
Section 3.09 Quorum and Adjournments. Unless otherwise provided by the
Certificate of Incorporation, at all meetings of the Board of Directors,
one-half of the total number of Directors shall constitute a quorum for the
transaction of business; provided, however, that at least one (1) of the
Directors constituting a quorum be a Director elected by the Series A Preferred
Stock holders. If a quorum is not present at any meeting of the Board of
Directors, the Directors present may adjourn the meeting, from time to time,
without notice other than announcement at the meeting, until a quorum is
present.
Section 3.10 Presiding Officer. Meetings of the Board of Directors shall
be presided over by the Chairman of the Board or by such other person as the
Board of Directors may appoint for the purpose of presiding at the meeting.
Section 3.11 Action by Vote. Except as may be otherwise provided by law,
by the Certificate of Incorporation or by these Bylaws, when a quorum is present
at any meeting, the vote of a majority of the Directors present shall be the act
of the Board of Directors.
Section 3.12 Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, 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
committee, as the case may be, consent thereto in writing, and the
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writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee. Such consent shall have the same force and effect as the
unanimous vote of the Board of Directors.
Section 3.13 Telephone Meetings. Members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or any committee, by means of video conference,
telephone conference or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at the meeting.
Section 3.14 Compensation. Unless otherwise restricted by the Certificate
of Incorporation or these Bylaws, the Board of Directors shall have the
authority to fix from time to time the compensation of Directors. The Directors
may be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and the performance of their responsibilities as Directors and may
be paid a fixed sum for attendance at each meeting of the Board of Directors
and/or a stated salary as Director. No such payment shall preclude any Director
from serving the Corporation or its parent or subsidiary corporations in any
other capacity and receiving compensation therefor. The Board of Directors may
also allow compensation for members of special or standing committees for
service on such committees.
ARTICLE IV.
COMMITTEES
Section 4.01 Committees of Directors. Subject to the Certificate of
Incorporation, the Board of Directors may, by resolution passed by a majority of
the whole Board of Directors, designate one (1) or more committees, each
committee to consist of one (1) or more Directors of the Corporation. The Board
of Directors may designate one (1) or more persons who are not
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Directors as additional members of any committee, but such persons shall be
non-voting members of such committee. The Board of Directors may designate one
(1) 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 a committee, the member or members of the
committee present at any meeting and not disqualified from voting, whether or
not such member or members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member. Any such committee, 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; but no such committee shall have
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 property and assets,
recommend to the stockholders a dissolution of the Corporation or a revocation
of a dissolution, elect or remove Officers or Directors, or amend the Bylaws of
the Corporation; and, unless the resolution or the Certificate of Incorporation
expressly so provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors.
Section 4.02 Minutes of Committee Meetings. Unless otherwise provided in
the resolution of the Board of Directors establishing such committee, each
committee shall keep minutes of action taken by it and file the same with the
Secretary of the Corporation.
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Section 4.03 Quorum. A majority of the number of Directors constituting
any committee shall constitute a quorum for the transaction of business, and the
affirmative vote of such Directors present at the meeting shall be required for
any action of the committee; provided, however, that, when a committee of one
(1) member is authorized under the provisions of Section 4.01 of this Article,
such one (1) member shall constitute a quorum only if such one (1) member is a
Director elected by the Series A Preferred Stock holders.
Section 4.04 Vacancies, Changes, and Discharge. The Board of Directors
shall have the power at any time to fill vacancies in, to change the membership
of, and to discharge any committee.
Section 4.05 Compensation. The Board of Directors, by the affirmative vote
of a majority of the Directors then in office and irrespective of the personal
interest of any Director, shall have authority to establish reasonable
compensation for committee members for their services as such and may, in
addition, authorize reimbursement of any reasonable expenses incurred by
committee members in connection with their duties.
ARTICLE V.
NOTICES
Section 5.01 Form and Delivery.
(a) Whenever, under the provisions of law, the Certificate of
Incorporation or these Bylaws, notice is required to be given to any
stockholder, it shall not be construed to mean personal notice unless otherwise
specifically provided, but such notice may be otherwise given in writing, by
mail, telecopy, telegram, electronic mail or messenger addressed to such
stockholder, at his address as it appears on the records of the Corporation. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail, with postage prepaid.
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(b) Whenever, under the provisions of law, the Certificate of
Incorporation, or these Bylaws, notice is required to be given to any Director,
it shall not be construed to mean personal notice unless otherwise specifically
provided, but such notice may be otherwise given in writing, by mail, telecopy,
telegram, electronic mail or messenger addressed to such Director at the usual
place of residence or business of such Director as in the discretion of the
person giving such notice will be likely to be received most expeditiously by
such Director. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, with postage prepaid.
Section 5.02 Waiver. Whenever any notice is required to be given under the
provisions of law, the Certificate of Incorporation or these Bylaws, a written
waiver of notice, signed by the person or persons entitled to said notice,
whether before or after the time for the meeting stated in such notice, shall be
deemed equivalent to such notice.
ARTICLE VI.
OFFICERS
Section 6.01 Designations. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a President and a Secretary. The Board of
Directors may also choose a Chairman of the Board, Chief Executive Officer,
Chief Operating Officer, one (1) or more Vice Presidents, a Chief Financial
Officer, a Treasurer, one (1) or more Assistant Secretaries and one (1) or more
Assistant Treasurers and other officers and agents as it shall deem necessary or
appropriate. Any officer of the Corporation shall have the authority to affix
the seal of the Corporation and to attest the affixing of the seal by his
signature. All officers and agents of the Corporation shall exercise such powers
and perform such duties as shall from time to time be determined by the Board of
Directors.
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Section 6.02 Term of Office and Removal. The Board of Directors, at its
annual meeting or at a special meeting, shall choose Officers and agents, if
any, in accordance with the provisions of Section 6.01. Each Officer of the
Corporation shall hold office until his successor is elected and shall qualify.
Any Officer or agent elected or appointed by the Board of Directors may be
removed, with or without cause, at any time by the affirmative vote of a
majority of the Directors then in office. Any vacancy occurring in any office of
the Corporation may be filled for the unexpired portion of the term by the Board
of Directors.
Section 6.03 Compensation. The salaries of all officers and agents, if
any, of the Corporation shall be fixed from time to time by the Board of
Directors, and no officer or agent shall be prevented from receiving such salary
by reason of the fact that he is also a Director of the Corporation.
Section 6.04 Chief Executive Officer. The Chief Executive Officer shall
manage and oversee the day-to-day business, affairs and property of the
Corporation, shall be in charge of the general supervision over its other
Officers and agents and, in general, shall perform all duties incident to the
office of the Chief Executive Officer and to see that all orders and resolutions
of the Board of Directors are carried into effect. The Chief Executive Officer
shall also have such other powers as determined by the Board of Directors.
Section 6.05 The President. To the extent a Chief Executive Officer does
not exercise such powers, the duties of the President shall be:
(i) To have general charge of the business, affairs and property of
the Corporation and general supervision over its other Officers and agents and,
in general, to perform all duties incident to the office of President and to see
that all orders and resolutions of the Board of Directors are carried into
effect; and
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(ii) Unless otherwise prescribed by the Board of Directors, to have
full power and authority on behalf of the Corporation to attend, act and vote at
any meeting of security holders of other corporations in which the Corporation
may hold securities. At such meeting the President shall possess and may
exercise any and all rights and powers incident to the ownership of such
securities which the Corporation might have possessed and exercised if it had
been present. The Board of Directors may from time to time confer like powers
upon any other person or persons.
Section 6.06 The Vice President. The Vice President, if any (or in the
event there be more than one (1), the Vice Presidents in the order designated,
or in the absence of any designation, in the order of their election), shall, in
the absence of the President or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the President and shall generally
assist the Chief Executive Officer and the President and perform such other
duties and have such other powers as may from time to time be prescribed by the
Board of Directors.
Section 6.07 The Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all votes and the
proceedings of the meetings in a book to be kept for that purpose and shall
perform like duties for any committees of the Board of Directors, if requested
by such committee. He shall give, or cause to be given, notice of all meetings
of stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may from time to time be prescribed by the Board of
Directors or the Chief Executive Officer, under whose supervision he shall act.
He shall have custody of the seal of the Corporation, and he, or an Assistant
Secretary, shall have authority to affix the same to any instrument requiring
it, and, when so affixed, the seal may be attested by his signature or by the
signature of such Assistant Secretary.
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Section 6.08 The Assistant Secretary. The Assistant Secretary, if any (or
in the event there be more than one (1) , the Assistant Secretaries in the order
designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as may
from time to time be prescribed by the Board of Directors.
Section 6.09 The Treasurer. The Treasurer, if any, shall have the custody
of the corporate funds and other valuable effects, including securities, and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may from time to time be designated by the Board of Directors. He shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the Chief Executive
Officer and the Board of Directors, at regular meetings of the board, or
whenever they may require it, an account of all his transactions as Treasurer
and of the financial condition of the Corporation. In the absence of any
Treasurer or Assistant Treasurers, the above described duties shall be carried
out by a Chief Financial Officer.
Section 6.10 The Assistant Treasurer. The Assistant Treasurer, if any, (or
in the event there be more than one (1), the Assistant Treasurers in the order
designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as may
from time to time be prescribed by the Board of Directors.
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Section 6.11 Chairman of the Board. If a Chairman of the Board shall be
elected by the Board of Directors, the Chairman of the Board shall preside over
meetings of the stockholders and of the Board of Directors, and shall have such
other duties as may from time to time be prescribed by the Board of Directors or
the Chief Executive Officer. In the absence of a Chairman of the Board, the
above described duties shall be carried out by the Chief Executive Officer or,
if such Officer is not in office, the President.
Section 6.12 Transfer of Authority. In case of the absence of any Officer
or for any other reason that the Board of Directors deems sufficient, the Board
of Directors may transfer the powers or duties of that Officer to any other
Officer or to any Director or employee of the Corporation, provided a majority
of the full Board of Directors concurs.
ARTICLE VII.
STOCK CERTIFICATES
Section 7.01 Form and Signatures. 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, the
President or a Vice President and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Corporation, certifying the number
and class (and series, if any) of shares owned by him, and bearing the seal of
the Corporation. Such seal and any or all 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 certificates 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 7.02 Registration of Transfer. Upon surrender to the Corporation
or any
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transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation or its transfer agent to issue
a new certificate to the person entitled thereto, to cancel the old certificate
and to record the transaction upon its books.
Section 7.03 Registered Stockholders. Except as otherwise provided by law,
the Corporation shall be entitled to recognize the exclusive right of a person
who is registered on its books as the owner of shares of its capital stock to
receive dividends or other distributions, to vote as such owner, and to hold
liable for calls and assessments a person who is registered on its books as the
owner of shares of its capital stock. The Corporation shall not be bound to
recognize any equitable, legal, or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
ARTICLE VIII.
INDEMNIFICATION
Section 8.01 Directors, Officers, Employees or Agents.
(a) The Corporation (i) shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative
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(other than an action by or in the right of the Corporation) by reason of the
fact the he is or was a Director or Officer of the Corporation, or is or was
serving at the request of the Corporation as a Director or Officer of another
corporation, partnership, joint venture, trust or other enterprise, and (ii) may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is or was an
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, in
and of itself, create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or a
proceeding, has reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a Director, and (ii) may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was an Officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a Director, Officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in
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a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a Director, Officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
Article VIII, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
Article VIII (unless ordered by the court) shall be made by the Corporation only
as authorized in the specific case upon a determination that indemnification of
the Director Officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in subsections (a) and
(b) of this Article VIII. Such determination shall be made (1) by a majority
vote of the Directors who are not parties to such action, suit or proceeding,
even though less than a quorum, or (2) if there are no such Directors, or if
such Directors so direct, by independent legal counsel in a written opinion, or
(3) by the stockholders.
(e) Expenses incurred by an Officer or Director in defending a civil
or criminal action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of
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such Director or Officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article. Such expenses incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by
these Bylaws shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested Directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office.
(g) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(h) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a Director, Officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise 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 this Article.
ARTICLE IX.
GENERAL PROVISIONS
Section 9.01 Fiscal Year. The fiscal year of the Corporation shall be as
determined
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from time to time by the Board of Directors.
Section 9.02 Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal" and "Delaware." The seal or any facsimile thereof may be, but need not be,
unless required by law, impressed or affixed to any instrument executed by an
Officer of the Corporation.
ARTICLE X.
AMENDMENTS
Subject to the Certificate of Incorporation, these Bylaws may be altered,
amended or repealed, or new Bylaws may be adopted, by the stockholders or by the
Board of Directors, to the extent that such power is conferred upon the Board of
Directors by the Certificate of Incorporation, at any regular or special meeting
of the stockholders or at any regular or special meeting of the Board of
Directors.
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