Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF XANODYNE PHARMACEUTICALS,
INC.
ARTICLE I
STOCKHOLDERS
SECTION 1. Place of Meetings. All meetings of stockholders shall be held at
the principal office of the corporation or at such other place as may be named
in the notice. Notwithstanding the foregoing, the Board of Directors may, in its
sole discretion, determine that the meeting shall not be held at any place, but
shall be held solely by means of remote communication, subject to such
guidelines and procedures as the Board of Directors may adopt, as permitted by
applicable law.
SECTION 2. Annual Meeting. The annual meeting of stockholders for the
election of directors and the transaction of such other business as may properly
come before the meeting shall be held on such date and at such hour and place as
the Board of Directors or an officer designated by the Board of Directors may
determine. If the annual meeting is not held on the date designated therefor,
the Board of Directors shall cause the meeting to be held as soon thereafter as
convenient.
SECTION 3. Remote Communication. For the purposes of these bylaws, if
authorized by the Board of Directors in its sole discretion, and subject to such
guidelines and procedures as the Board of Directors may adopt, stockholders and
proxyholders not physically present at a meeting of the stockholders may, by
means of remote communication: participate in a meeting of stockholders and be
deemed present in person and vote at a meeting of stockholders whether such
meeting is to be held at a designated place or solely by means of remote
communication, provided that (i) the corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at the
meeting by means of remote communication is a stockholder or proxyholder, (ii)
the corporation shall implement reasonable measures to provide such stockholders
and proxyholders a reasonable opportunity to participate in the meeting and to
vote on matters submitted to the stockholders, including an opportunity to read
or hear the proceedings of the meeting substantially concurrently with such
proceedings, and (iii) if any stockholder or proxyholder votes or takes other
action at the meeting by means of remote communication, a record of such vote or
other action shall be maintained by the corporation.
SECTION 4. Special Meetings. Special meetings of the stockholders may be
called at any time by the President or a majority of the Board of Directors. A
special meeting of stockholders shall be called by the Secretary, upon written
request, stating the purpose of the meeting, of stockholders who together own of
record sixty percent of the then outstanding shares of Series A-l Convertible
Preferred Stock, $0.001 par value per share, of the corporation.
SECTION 5. Notice of Meetings. Except where some other notice is required
by law, notices of meetings of the stockholders shall state the place, if any,
date and hour of the meeting,
the means of remote communications, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such meetings and
the purposes for which the meeting is called, shall be given by the Secretary
under the direction of the Board of Directors or the President, not less than
ten nor more than sixty days before the date fixed for such meeting, to each
stockholder of record entitled to vote at such meeting. If the Board of
Directors has chosen to make a list of stockholders available on an electronic
network, the notice shall provide the information required to gain access to
such list. Notice to stockholders may be given in writing or by electronic
transmission as permitted pursuant to this Section 5. If given in writing,
notice shall be given personally to each stockholder or left at such
stockholder's residence or usual place of business or mailed postage prepaid and
addressed to the stockholder at such stockholder's address as it appears upon
the records of the corporation. In case of the death, absence, incapacity or
refusal of the Secretary, such notice may be given by a person designated either
by the President or the Board of Directors. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the corporation's notice of meeting. Notice of any
meeting of stockholders need not be given to any stockholder who has waived such
notice in writing or by electronic transmission, whether before or after the
time such meeting is held. Attendance of a person at a meeting of stockholders
shall constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders need be specified in any
written or electronically transmitted waiver of notice. Except as required by
statute, notice of any adjourned meeting of the stockholders shall not be
required.
Any notice to stockholders given by the corporation shall be effective if
given by a form of electronic transmission consented to by the stockholder to
whom the notice is given to the extent permitted by applicable law. Any such
consent shall be revocable by the stockholder by written notice to the
corporation and shall also be deemed revoked if (1) the corporation is unable to
deliver by electronic transmission two consecutive notices given by the
corporation in accordance with such consent and (2) such inability becomes known
to the Secretary or Assistant Secretary of the corporation or to the transfer
agent or other person responsible for the giving of notice; provided, however,
the inadvertent failure to treat such inability as a revocation shall not
invalidate any meeting or other action. Notice given pursuant to this Section
shall be deemed given: (1) if by facsimile telecommunication, when directed to a
number at which the stockholder has consented to receive notice; (2) if by
electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice; (3) if by posting on an electronic
network together with separate notice to the stockholder of such specific
posting, upon the later of (A) such posting and (B) the giving of such separate
notice; and (4) if by any other form of electronic transmission, when directed
to the stockholder. An affidavit of the secretary or an assistant secretary or
of the transfer agent or other agent of the corporation that the notice has been
given by a form of electronic transmission shall, in the absence of fraud, be
prima facie evidence of the facts stated therein.
For purposes of these bylaws, "electronic transmission" means any form of
communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process.
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SECTION 6. Record Date. The Board of Directors may fix in advance a record
date for the determination of the stockholders entitled to notice of or to vote
at any meeting of stockholders, or entitled to consent to corporation 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. Such record date shall not be earlier than
the date upon which the resolution fixing the record date is adopted by the
Board of Directors and shall not be more than 60 nor less than 10 days before
the date of such meeting, nor more than 60 days before any other action to which
such record date relates. If no record date is fixed, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day 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 the record date
for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating to such purpose. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
SECTION 7. Voting List. The officer who has charge of the stock ledger of
the corporation shall make or have made, at least 10 days before every meeting
of stockholders, a complete list of the stockholders 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
10 days before the meeting either on a reasonably accessible electronic network
or during ordinary business hours at the principal place of business of the
corporation. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list required
by this section or the books of the corporation, or to vote at any meeting of
stockholders.
SECTION 8. Quorum of Stockholders. Unless otherwise provided in the
Restated Certificate, at any meeting of the stockholders, the holders of a
majority of the voting power of the outstanding shares of the corporation
entitled to vote generally in the election of directors present in person or
represented by proxy, shall constitute a quorum for the consideration of any
question, but in the absence of a quorum a smaller group may adjourn any meeting
from time to time. When a quorum is present at any meeting, a majority of the
votes properly cast shall, except where a different vote is required by law, by
the Restated Certificate or by these bylaws, decide any question brought before
such meeting. Any election by stockholders shall be determined by a plurality of
the vote cast by the stockholders entitled to vote at the election. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 9. Proxies and Voting. Unless otherwise provided in the Restated
Certificate, each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for such stockholder by proxy, but no
such proxy shall be voted or acted
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upon after three years from its date, unless the proxy provides for a longer
period. Shares of the capital stock of the corporation belonging to the
corporation or to another corporation, a majority of whose shares entitled to
vote in the election of directors is owned by the corporation, shall neither be
entitled to vote nor be counted for quorum purposes.
SECTION 10. Conduct of Meeting. Meetings of the stockholders shall be
presided over by the Chairperson of the Board, if any, or in the absence of the
Chairperson of the Board by the Vice Chairperson of the Board, if any, or in the
absence of the Vice Chairperson of the Board by the President, or in the absence
of the President by a Vice-President, or in the absence of the foregoing persons
by a chairperson designated by the Board of Directors, or in the absence of such
designation by a chairperson chosen at the meeting. The Secretary, or in the
absence of the Secretary an Assistant Secretary, shall act as secretary of the
meeting, but in the absence of the Secretary and any Assistant Secretary the
chairperson of the meeting may appoint any person to act as secretary of the
meeting.
The Board of Directors may adopt such rules, regulations and procedures for
the conduct of the meeting of stockholders as it shall deem appropriate. Except
to the extent inconsistent with such rules and regulations as adopted by the
Board of Directors, the chairperson of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such chairperson, 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 chairperson of the meeting, may
include, without limitation, (i) the establishment of an agenda or order of
business for the meeting, (ii) rules and procedures for maintaining order at the
meeting and the safety of those present, (iii) limitations on attendance at or
participation in the meeting to stockholders of record of the corporation, their
duly authorized and constituted proxies or such other persons as the chairperson
of the meeting shall determine, (iv) restrictions on entry to the meeting after
the time fixed for the commencement thereof, and (v) limitations on the time
allotted to questions or comments by participants. Unless and to the extent
determined by the Board of Directors or the chairperson of the meeting, meetings
of stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
SECTION 11. Action Without Meeting. Any action required or permitted to be
taken at any annual or special meeting of stockholders of the corporation may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, is signed by the holders or by
proxy for 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 on such action were present and
voted. Prompt notice of the taking of corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE II
DIRECTORS
SECTION 1. General Powers. The business and affairs of the corporation
shall be managed by or under the direction of a Board of Directors, who may
exercise all of the powers
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of the corporation that are not by law required to be exercised by the
stockholders. In the event of a vacancy on the Board of Directors, the remaining
directors, except as otherwise provided by law or the Restated Certificate, may
exercise the powers of the full Board until the vacancy is filled.
SECTION 2. Election. The directors shall be elected in the manner set forth
in the Restated Certificate and the Stockholders' Agreement, dated as of July
25, 2005 and as amended from time to time, by and between the corporation
and the Stockholders named therein (the "Stockholders' Agreement") by such
stockholders as have the right to vote thereunder.
SECTION 3. Vacancies. Any vacancy in the Board of Directors, however
occurring, including a vacancy resulting from an enlargement of the Board and an
unfilled vacancy resulting from the removal of any director, may be filled in
the manner set forth in the Restated Certificate and the Stockholders'
Agreement. Each director so chosen to fill a vacancy shall serve for a term
determined in the manner provided in the Restated Certificate and the General
Corporation Law of the State of Delaware. If at any time there are no directors
in office, then an election of directors may be held in accordance with the
General Corporation Law of the State of Delaware.
SECTION 4. Resignation. Any director may resign at any time by giving
notice to the corporation in writing or by electronic transmission. Such
resignation shall take effect at the time specified therein, or if no time is
specified, at the time of its receipt by the Chairperson of the Board, if any,
the President or the Secretary.
SECTION 5. Removal. Directors may be removed from office only as provided
in the Restated Certificate and the Stockholders' Agreement.
SECTION 6. Committees. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more directors of the
corporation. The Board of Directors may designate one or more directors as
alternate members of any committee to replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification of any
member of any such committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of such absent or disqualified
member. The Board of Directors shall have the power to change the members of any
such committee at any time, to fill vacancies therein and to discharge any such
committee, either with or without cause, at any time.
Any such committee, to the extent permitted by law and to the extent
provided in a resolution of the Board of Directors or in these bylaws, shall
have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers that may require it.
A majority of all the members of any such committee may fix its rules of
procedure, determine its actions and fix the time and place, whether within or
without the State of Delaware,
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of its meetings and specify what notice thereof, if any, shall be given, unless
the Board of Directors shall otherwise by resolution provide. Each committee
shall keep regular minutes of its meetings and make such reports as the Board of
Directors may from time to time request.
SECTION 7. Meetings of the Board of Directors. Regular meetings of the
Board of Directors may be held without call or formal notice at such places
either within or without the State of Delaware and at such times as the Board
may by vote from time to time determine. A regular meeting of the Board of
Directors may be held without call or formal notice immediately after and at the
same place as the annual meeting of the stockholders, or any special meeting of
the stockholders at which a Board of Directors is elected.
Special meetings of the Board of Directors may be held at any place either
within or without the State of Delaware at any time when called by the
Chairperson of the Board, if any, the President, the Secretary, if any, or two
or more directors. Reasonable notice of the time and place of a special meeting
shall be given to each director unless such notice is waived by attendance or by
waiver in the manner provided in these bylaws for waiver of notice by
stockholders. Notice may be given by, or by a person designated by, the
Secretary, the person or persons calling the meeting, or the Board of Directors.
No notice of any adjourned meeting of the Board of Directors shall be required.
In any case it shall be deemed sufficient notice to a director to send notice by
mail at least seventy-two hours, by telegram or fax at least forty-eight hours
before the meeting, addressed to such director at his or her usual or last known
business or home address, by electronic mail, when directed to an electronic
mail address at which the director has consented to receive notice, or by any
other form of electronic transmission, when directed to the director.
Directors or members of any committee may participate in a meeting of the
Board of Directors or of such committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation by such means shall
constitute presence in person at such meeting.
SECTION 8. Quorum and Voting. A quorum for any meeting of the Board of
Directors shall consist of a majority of all directors. If, at any meeting, a
quorum is not present for any reason, then another Board meeting may be convened
within ten (10) business days and, at such meeting, a majority of all directors
shall constitute a quorum for all purposes. The vote of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board of Directors, except where a different vote is required by law, by
the Restated Certificate, by these Amended and Restated Bylaws or by the
Stockholders' Agreement.
SECTION 9. Compensation. The Board of Directors may fix fees for their
services and for their membership on committees, and expenses of attendance may
be allowed for attendance at each meeting. Nothing herein contained shall be
construed to preclude any director from serving the corporation in any other
capacity, as an officer, agent or otherwise, and receiving compensation
therefor.
SECTION 10. Action Without Meeting. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting and without notice if all members of the Board of
Directors or of such committee, as the
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case may be, consent thereto in writing (which may be in counterparts) or by
electronic transmission, and the writing or writings or electronic transmission
or electronic transmissions are filed with the minutes of proceedings of the
Board of Directors or of such committee. Such filings shall be in paper form if
the minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
ARTICLE III
OFFICERS
SECTION 1. Titles. The officers of the corporation shall consist of a
President, a Treasurer, a Secretary, and such other officers with such other
titles as the Board of Directors shall determine, who may include without
limitation a Chairperson of the Board, a Vice-Chairperson of the Board and one
or more Vice-Presidents, Assistant Treasurers or Assistant Secretaries.
SECTION 2. Election and Term of Office. The officers of the corporation
shall be elected from time to time by the Board of Directors to hold office
until his or her successor is elected and qualified, unless a different term is
specified in the vote electing such officer, or until his or her earlier death,
resignation or removal.
SECTION 3. Qualification. Unless otherwise provided by resolution of the
Board of Directors, no officer, other than the Chairperson or Vice-Chairperson
of the Board, need be a director. No officer need be a stockholder. Any number
of offices may be held by the same person, as the Board of Directors shall
determine.
SECTION 4. Removal. Any officer may be removed, with or without cause, at
any time, by resolution adopted by the Board of Directors. Unless otherwise
provided in a resolution of the Board of Directors, the President may remove,
with or without cause, at any time, any officer of the corporation.
SECTIONS. Resignation. Any officer may resign by delivering a written
notice to the corporation at its principal office or to the Chairperson of the
Board, if any, the President or the Secretary. Such resignation shall take
effect at the time specified therein, or if no time is specified, at the time of
its receipt by the Chairperson of the Board, if any, the President or the
Secretary.
SECTION 6. Vacancies. The Board of Directors, the Chairperson of the Board,
if any, or the President may at any time fill any vacancy occurring in any
office for the unexpired portion of the term or may leave unfilled any office
other than those of President, Treasurer and Secretary.
SECTION 7. Powers and Duties. The officers of the corporation shall have
such powers and perform such duties as are specified herein and as may be
conferred upon or assigned to them by the Board of Directors, or, in the case of
any officer other than the President, the President, and shall have such
additional powers and duties as are incident to their office except to the
extent that resolutions of the Board of Directors are inconsistent therewith.
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SECTION 8. President and Vice-Presidents. Except to the extent that such
duties are assigned by the Board of Directors to the Chairperson of the Board,
or in the absence of the Chairperson or in the event of his or her inability or
refusal to act, the President shall be the chief executive officer of the
corporation and shall have general and active management of the business of the
corporation and general supervision of its officers, agents and employees, and
shall see that all orders and resolutions of the Board of Directors are carried
into effect. The President shall preside at each meeting of the stockholders and
the Board of Directors unless a Chairperson or Vice-Chairperson of the Board is
elected by the Board and is assigned the duty of presiding at such meetings.
The Board of Directors may assign to any Vice-President the title of
Executive Vice-President, Senior Vice-President or any other title selected by
the Board of Directors. In the absence of the President or in the event of his
or her inability or refusal to act, the duties of the President shall be
performed by the Executive Vice-President, if any, Senior Vice-President, if
any, or Vice President, if any, in that order (and, in the event there be more
than one person in any such office, in the order of their length of time spent
in such office), and when so acting, such officer shall have all the powers of
and be subject to all the restrictions upon the President.
SECTION 9. Secretary and Assistant Secretaries. The Secretary shall attend
all meetings of the Board of Directors and of the stockholders and record all
the proceedings of such meetings in a book to be kept for that purpose, shall
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, shall maintain a stock ledger and
prepare lists of stockholders and their addresses as required and shall have
custody of the corporate seal, which the Secretary or any Assistant Secretary
shall have authority to affix to any instrument requiring it and attest by any
of their signatures. The Board of Directors may give general authority to any
other officer to affix and attest the seal of the corporation.
Any Assistant Secretary, or any other officer, employee or agent designated
by the Board of Directors, the Chairperson of the Board or the President, may,
in the absence of the Secretary or in the event of the Secretary's inability or
refusal to act, perform the duties and exercise the powers of the Secretary.
SECTION 10. Treasurer and Assistant Treasurers. The Treasurer shall have
the custody of the corporate funds and securities, shall keep full and accurate
accounts of receipts and disbursements in books belonging to the corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the corporation in such depositories as may be designated by or
pursuant to resolution of the Board of Directors. The Treasurer shall disburse
the funds of the corporation as may be ordered by the Board of Directors, the
Chairperson of the Board, if any, or the President, taking proper vouchers for
such disbursements, and shall render to the Chairperson of the Board, if any,
the President and the Board of Directors, at its regular meetings or whenever
they may require it, an account of all transactions and of the financial
condition of the corporation.
Any Assistant Treasurer, or any other officer, employee or agent designated
by the Board of Directors, the Chairperson of the Board or the President, may,
in the absence of the Treasurer
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or in the event of his or her inability or refusal to act, perform the duties
and exercise the powers of the Treasurer.
SECTION 11. Bonded Officers. The Board of Directors may require any officer
to give the corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors upon such terms and conditions
as the Board of Directors may specify, including without limitation a bond for
the faithful performance of the duties of such officer and for the restoration
to the corporation of all property in his or her possession or control belonging
to the corporation.
ARTICLE IV
STOCK
SECTION 1. Certificates of Stock. Unless otherwise provided by the Board of
Directors, the shares of the corporation shall be represented by certificates.
One or more stock certificates, signed by (i) the Chairperson or
Vice-Chairperson of the Board of Directors or the President or a Vice-President
and (ii) the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, shall be issued to each stockholder certifying the number
of shares owned by the stockholder in the corporation. Any or all signatures on
any such certificate may be facsimiles. In case any officer, transfer agent or
registrar who shall have signed or whose facsimile signature shall have been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if such person or entity were such officer,
transfer agent or registrar at the date of issue.
Each certificate for shares of stock that are subject to any restriction on
transfer pursuant to the Restated Certificate, these bylaws, applicable
securities laws, or any agreement among any number of stockholders or among such
holders and the corporation shall have conspicuously noted on the face or back
of the certificate either the full text of the restriction or a statement of the
existence of such restriction. If the corporation is authorized to issue more
than one class or series of stock, each certificate for shares of stock shall
have conspicuously noted on the face or back of the certificate a statement that
the corporation will furnish without additional charge to each stockholder who
so requests the powers, designations, preferences and relative, participating,
optional, or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
SECTION 2. Transfers of Shares of Stock. Subject to the restrictions, if
any, stated or noted on a stock certificate, shares of stock may be transferred
on the books of the corporation by the surrender to the corporation or its
transfer agent of the certificate representing such shares properly endorsed or
accompanied by a written assignment or power of attorney properly executed, and
with such proof of authority or the authenticity of signature as the corporation
or its transfer agent may reasonably require. The corporation shall be entitled
to treat the record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and the right to vote
with respect to that stock, regardless of any transfer, pledge or other
disposition of that stock, until the shares have been transferred on the books
of the corporation in accordance with the requirements of these bylaws.
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SECTION 3. Lost Certificates. A new stock certificate may be issued in the
place of any certificate theretofore issued by the corporation and alleged to
have been lost, stolen or destroyed, upon such terms in conformity with law as
the Board of Directors shall prescribe. The Board of Directors may, in their
discretion, require the owner of the lost, stolen or destroyed certificate, or
the owner's legal representatives, to give the corporation a bond, in such sum
as they may direct, to indemnify the corporation against any claim that may be
made against it on account of the alleged loss, theft or destruction of any such
certificate, or the issuance of any such new certificate.
SECTION 4. Fractional Share Interests. The corporation may, but shall not
be required to, issue fractions of a share. If the corporation does not issue
fractions of a share, it shall (i) arrange for the disposition of fractional
interests by those entitled thereto, (ii) pay in cash the fair value of
fractions of a share as of the time when those entitled to receive such
fractions are determined, or (iii) issue scrip or warrants in registered or
bearer form, which shall entitle the holder to receive a certificate for a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share shall, but scrip or warrants shall not unless
otherwise provided therein, entitle the holder to exercise voting rights, to
receive dividends thereon, and to participate in any of the assets of the
corporation in the event of liquidation. The Board of Directors may cause scrip
or warrants to be issued subject to the conditions that they shall become void
if not exchanged for certificates representing full shares before a specified
date, or subject to the conditions that the shares for which scrip or warrants
are exchangeable may be sold by the corporation and the proceeds thereof
distributed to the holders of scrip or warrants, or subject to any other
conditions that the Board of Directors may impose.
SECTION 5. Dividends. Subject to the provisions of the Restated
Certificate, the Board of Directors may, out of funds legally available therefor
declare and pay dividends upon the capital stock of the corporation as and when
they deem expedient.
ARTICLE V
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall indemnify, to the extent permitted by applicable law,
any person made, or threatened to be made, a party to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was a director or officer of the corporation
or serves or served at the request of the corporation as a director or officer
of any other enterprise or in a comparable role at such enterprise. Expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement,
actually and reasonably incurred by any such person in connection with any such
action, suit or proceeding shall be paid or reimbursed by the corporation
promptly upon receipt by it of an undertaking of such person to repay such
amounts if it shall ultimately be determined that such person is not entitled to
be indemnified by the corporation. The rights provided to any person by this
bylaw shall be enforceable against the corporation by such person, who shall be
presumed to have relied upon it in serving or continuing to serve as a director
or officer, and by such person's heirs and legal representations. No amendment
of this bylaw shall impair the rights of any person arising at any time with
respect to events occurring prior to such amendment. For purposes of this bylaw,
the term "corporation" shall include any predecessor of the corporation and any
constituent
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corporation (including any constituent of a constituent) absorbed by the
corporation in a consolidation or merger; the term "other enterprise" shall
include employee benefit plans; the term "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit plan; service "at the
request of the corporation" shall include service as a director or officer of
the corporation which imposes duties on, or involves services by, such director
or officer with respect to an employee benefit plan, its participants or
beneficiaries; and action by a person with respect to an employee benefit plan
which such person reasonably believes to be in the interest of the participants
and beneficiaries of such plan shall be deemed to be action not opposed to the
best interests of the corporation.
ARTICLE VI
GENERAL PROVISIONS
SECTION 1. Fiscal Year. The fiscal year of the corporation shall be fixed
by the Board of Directors.
SECTION 2. Corporate Seal. The corporate seal shall be in such form as
shall be approved by the Board of Directors. The Secretary shall be the
custodian of the seal, and a duplicate seal may be kept and used by each
Assistant Secretary and by any other officer the Board of Directors may
authorize.
SECTION 3. Restated Certificate. All references in these bylaws to the
"Restated Certificate" shall be deemed to refer to the Amended and Restated
Certificate of Incorporation of the corporation, as in effect from time to time.
SECTION 4. Execution of Instruments. The President, the Treasurer and the
Secretary shall have power to execute and deliver on behalf and in the name of
the corporation any instrument requiring the signature of an officer of the
corporation, including deeds, contracts, mortgages, bonds, notes, debentures,
checks, drafts and other orders for the payment of money. In addition, the Board
of Directors, the President, the Treasurer and the Secretary may expressly
delegate such powers to any other officer or agent of the corporation.
SECTION 5. Voting of Securities. The President, the Treasurer and the
Secretary, and each other person authorized by the Board of Directors, each
acting singly, may waive notice of, and act as, or appoint any person or persons
to act as, proxy or attorney-in-fact for this corporation (with or without power
of substitution) at any meeting of stockholders or owners of other interests of
any other corporation or organization the securities of which may be held by
this corporation. In addition, the Board of Directors, the President and the
Treasurer may expressly delegate such powers to any other officer or agent of
the corporation.
SECTION 6. Evidence of Authority. A certificate by the Secretary, an
Assistant Secretary or a temporary secretary as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall, as to all persons who rely on the certificate in good faith,
be conclusive evidence of that action.
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SECTION 7. Books and Records. The books and records of the corporation
shall be kept at such places within or without the State of Delaware as the
Board of Directors may from time to time determine.
SECTION 8. Amendments. Subject to the vote of the holders of any class or
series of capital stock of the corporation required by the Delaware General
Corporation Law or the Restated Certificate, the Board of Directors is expressly
empowered to adopt, amend or repeal the bylaws of the corporation.
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