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EXHIBIT 3.6
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DJ ORTHOPEDICS CAPITAL CORPORATION
INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE
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BY-LAWS
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AS ADOPTED ON JUNE 30, 1999
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BY-LAWS OF
DJ ORTHOPEDICS CAPITAL CORPORATION
ARTICLE I
OFFICES
1.1 REGISTERED OFFICE.
The registered office of DJ Orthopedics Capital Corporation (the
"Corporation") in the State of Delaware shall be at 9 East Loockerman Street,
City of Dover, County of Kent 19901, and the registered agent in charge thereof
shall be National Registered Agents, Inc.
1.2 OTHER OFFICES.
The Corporation may also have an office or offices at any other place
or places within or outside the State of Delaware.
ARTICLE II
MEETING OF STOCKHOLDERS; STOCKHOLDERS'
CONSENT IN LIEU OF MEETING
2.1 ANNUAL MEETINGS.
The annual meeting of the stockholders for the election of directors,
and for the transaction of such other business as may properly come before the
meeting, shall be held at such place, date and hour as shall be fixed by the
Board of Directors (the "Board") and designated in the notice or waiver of
notice thereof, except that no annual meeting need be held if all actions,
including the election of directors, required by the General Corporation Law of
the State of Delaware (the "Delaware Statute") to be taken at a stockholders'
annual meeting are taken by written consent in lieu of meeting pursuant to
Section 2.10 of this Article II.
2.2 SPECIAL MEETINGS.
A special meeting of the stockholders for any purpose or purposes may
be called by the Board, the Chairman, the Chief Executive Officer, the
President or the record holders of at least a majority of the issued and
outstanding shares of Common Stock of the Corporation, to be held at such
place, date and hour as shall be designated in the notice or waiver of notice
thereof.
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2.3 NOTICE OF MEETINGS.
Except as otherwise required by statute, the Certificate of
Incorporation of the Corporation (the "Certificate") or these By-laws, notice
of each annual or special meeting of the stockholders shall be given to each
stockholder of record entitled to vote at such meeting not less than 10 nor
more than 60 days before the day on which the meeting is to be held, by
delivering written notice thereof to him personally, or by mailing a copy of
such notice, postage prepaid, directly to him at his address as it appears in
the records of the Corporation, or by transmitting such notice thereof to him
at such address by telegraph, cable or other telephonic transmission. Every
such notice shall state the place, the date and hour of the meeting, and, in
case of a special meeting, the purpose or purposes for which the meeting is
called. Notice of any meeting of stockholders shall not be required to be
given to any stockholder who shall attend such meeting in person or by proxy,
or who shall, in person or by attorney thereunto authorized, waive such notice
in writing, either before or after such meeting. Except as otherwise provided
in these By-laws, neither the business to be transacted at, nor the purpose of,
any meeting of the stockholders need be specified in any such notice or waiver
of notice. Notice of any adjourned meeting of stockholders shall not be
required to be given, except when expressly required by law.
2.4 QUORUM.
At each meeting of the stockholders, except where otherwise provided
by the Certificate or these By-laws, the holders of a majority of the issued
and outstanding shares of Common Stock of the Corporation entitled to vote at
such meeting, present in person or represented by proxy, shall constitute a
quorum for the transaction of business. In the absence of a quorum, a majority
in interest of the stockholders present in person or represented by proxy and
entitled to vote, or, in the absence of all the stockholders entitled to vote,
any officer entitled to preside at, or act as secretary of, such meeting, shall
have the power to adjourn the meeting from time to time, until stockholders
holding the requisite amount of stock to constitute a quorum shall be present
or represented. At any such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting as originally called.
2.5 ORGANIZATION.
(a) Unless otherwise determined by the Board, at each meeting
of the stockholders, one of the following shall act as chairman of the meeting
and preside thereat, in the following order of precedence:
(i) the Chairman;
(ii) the Chief Executive Officer;
(iii) the President;
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(iv) any director, officer or stockholder of the
Corporation designated by the Board to act as chairman of such meeting
and to preside thereat if the Chairman, the Chief Executive Officer or
the President shall be absent from such meeting; or
(v) a stockholder of record who shall be chosen
chairman of such meeting by a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote
thereat.
(b) The Secretary or, if he shall be presiding over such
meeting in accordance with the provisions of this Section 2.5 or if he shall be
absent from such meeting, the person (who shall be an Assistant Secretary, if
an Assistant Secretary has been appointed and is present) whom the chairman of
such meeting shall appoint, shall act as secretary of such meeting and keep the
minutes thereof.
2.6 ORDER OF BUSINESS.
The order of business at each meeting of the stockholders shall be
determined by the chairman of such meeting, but such order of business may be
changed by a majority in voting interest of those present in person or by proxy
at such meeting and entitled to vote thereat.
2.7 VOTING.
Except as otherwise provided by law, the Certificate or these By-laws,
at each meeting of the stockholders, every stockholder of the Corporation shall
be entitled to one vote in person or by proxy for each share of Common Stock of
the Corporation held by him and registered in his name on the books of the
Corporation on the date fixed pursuant to Section 6.7 of Article VI as the
record date for the determination of stockholders entitled to vote at such
meeting. Persons holding stock in a fiduciary capacity shall be entitled to
vote the shares so held. A person whose stock is pledged shall be entitled to
vote, unless, in the transfer by the pledgor on the books of the Corporation,
he has expressly empowered the pledgee to vote thereon, in which case only the
pledgee or his proxy may represent such stock and vote thereon. If shares or
other securities having voting power stand in the record of two or more
persons, whether fiduciaries, members of a partnership, joint tenants, tenants
in common, tenants by the entirety or otherwise, or if two or more persons have
the same fiduciary relationship respecting the same shares, unless the
Secretary shall be given written notice to the contrary and furnished with a
copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect:
(i) if only one votes, his act binds all;
(ii) if more than one votes, the act of the majority so
voting binds all; and
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(iii) if more than one votes, but the vote is evenly
split on any particular matter, such shares shall be voted in the
manner provided by law.
If the instrument so filed shows that any such tenancy is held in
unequal interests, a majority or even-split for the purposes of this Section
2.7 shall be a majority or even-split in interest. The Corporation shall not
vote directly or indirectly any share of its own capital stock. Any vote of
stock may be given by the stockholder entitled thereto in person or by his
proxy appointed by an instrument in writing, subscribed by such stockholder or
by his attorney thereunto authorized, delivered to the secretary of the
meeting; provided, however, that no proxy shall be voted after three years from
its date, unless said proxy provides for a longer period. At all meetings of
the stockholders, all matters (except where other provision is made by law, the
Certificate or these By-laws) shall be decided by the vote of a majority in
interest of the stockholders present in person or by proxy at such meeting and
entitled to vote thereon, a quorum being present. Unless demanded by a
stockholder present in person or by proxy at any meeting and entitled to vote
thereon, the vote on any question need not be by ballot. Upon a demand by any
such stockholder for a vote by ballot upon any question, such vote by ballot
shall be taken. On a vote by ballot, each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and shall state
the number of shares voted.
2.8 INSPECTION.
The chairman of the meeting may at any time appoint one or more
inspectors to serve at any meeting of the stockholders. Any inspector may be
removed, and a new inspector or inspectors appointed, by the Board at any time.
Such inspectors shall decide upon the qualifications of voters, accept and
count votes, declare the results of such vote, and subscribe and deliver to the
secretary of the meeting a certificate stating the number of shares of stock
issued and outstanding and entitled to vote thereon and the number of shares
voted for and against the question, respectively. The inspectors need not be
stockholders of the Corporation, and any director or officer of the Corporation
may be an inspector on any question other than a vote for or against his
election to any position with the Corporation or on any other matter in which
he may be directly interested. Before acting as herein provided, each
inspector shall subscribe an oath faithfully to execute the duties of an
inspector with strict impartiality and according to the best of his ability.
2.9 LIST OF STOCKHOLDERS.
It shall be the duty of the Secretary or other officer of the
Corporation who shall have charge of its stock ledger to prepare and make, at
least 10 days before every meeting of the stockholders, a complete list of the
stockholders entitled to vote thereat, 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 any such meeting, during ordinary
business hours, for a period of at least 10 days prior to such meeting, either
at a place within the city where such meeting is to be held, which place shall
be specified in the notice of the meeting or, if not so specified, at the place
where the meeting is to be
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held. Such 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.
2.10 STOCKHOLDERS' CONSENT IN LIEU OF MEETING.
Any action required by the Delaware Statute to be taken at any annual
or special meeting of the stockholders of the Corporation, or any action which
may be taken at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote, by a consent
in writing, as permitted by the Delaware Statute.
ARTICLE III
BOARD OF DIRECTORS
3.1 GENERAL POWERS.
The business, property and affairs of the Corporation shall be managed
by or under the direction of the Board, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by law or by
the Certificate directed or required to be exercised or done by the
stockholders.
3.2 NUMBER AND TERM OF OFFICE.
The number of directors shall be fixed from time to time by the Board.
Directors need not be stockholders. Each director shall hold office until his
successor is elected and qualified, or until his earlier death or resignation
or removal in the manner hereinafter provided. The intial number of directors
of the Corporation shall be set at seven.
3.3 ELECTION OF DIRECTORS.
At each meeting of the stockholders for the election of directors at
which a quorum is present, the persons receiving the greatest number of votes,
up to the number of directors to be elected, of the stockholders present in
person or by proxy and entitled to vote thereon shall be the directors;
provided, however, that for purposes of such vote no stockholder shall be
allowed to cumulate his votes. Unless an election by ballot shall be demanded
as provided in Section 2.7 of Article II, election of directors may be
conducted in any manner approved at such meeting.
3.4 RESIGNATION, REMOVAL AND VACANCIES.
(a) Any director may resign at any time by giving written
notice to the Board, the Chairman, the Chief Executive Officer, the President
or the Secretary. Such resignation shall take effect at the time specified
therein or, if the time be not specified, upon receipt thereof; unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
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(b) Any director or the entire Board may be removed, with or
without cause, at any time by vote of the holders of a majority of the shares
then entitled to vote at an election of directors or by written consent of the
stockholders pursuant to Section 2.10 of Article II.
(c) Vacancies occurring on the Board for any reason may be
filled by vote of the stockholders or by the stockholders' written consent
pursuant to Section 2.10 of Article II, or by vote of the Board or by the
directors' written consent pursuant to Section 3.6 of this Article III. If the
number of directors then in office is less than a quorum, such vacancies may be
filled by a vote of a majority of the directors then in office.
3.5 MEETINGS.
(a) Annual Meetings. As soon as practicable after each annual
election of directors, the Board shall meet for the purpose of organization and
the transaction of other business, unless it shall have transacted all such
business by written consent pursuant to Section 3.6 of this Article III.
(b) Other Meetings. Other meetings of the Board shall be held
at such times and places as the Board, the Chairman, the Chief Executive
Officer, the President or any director shall from time to time determine.
(c) Notice of Meetings. Notice shall be given to each director
of each meeting, including the time, place and purpose of such meeting. Notice
of each such meeting shall be mailed to each director, addressed to him at his
residence or usual place of business, at least two days before the date on
which such meeting is to be held, or shall be sent to him at such place by
telegraph, cable, wireless or other form of recorded communication, or be
delivered personally or by telephone not later than the day before the day on
which such meeting is to be held, but notice need not be given to any director
who shall attend such meeting. A written waiver of notice, signed by the
person entitled thereto, whether before or after the time of the meeting stated
therein, shall be deemed equivalent to notice.
(d) Place of Meetings. The Board may hold its meetings at such
place or places within or outside the State of Delaware as the Board may from
time to time determine, or as shall be designated in the respective notices or
waivers of notice thereof.
(e) Quorum and Manner of Acting. A majority of the total
number of directors then in office shall be present in person at any meeting of
the Board in order to constitute a quorum for the transaction of business at
such meeting, and the vote of a majority of those directors present at any such
meeting at which a quorum is present shall be necessary for the passage of any
resolution or act of the Board, except as otherwise expressly required by law
or these By-laws. In the absence of a quorum for any such meeting, a majority
of the directors present thereat may adjourn such meeting from time to time
until a quorum shall be present.
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(f) Organization. At each meeting of the Board, one of the
following shall act as chairman of the meeting and preside thereat, in the
following order of precedence:
(i) the Chairman;
(ii) the Chief Executive Officer;
(iii) the President (if a director); or
(iv) any director designated by a majority of the
directors present.
The Secretary or, in the case of his absence, an Assistant Secretary,
if an Assistant Secretary has been appointed and is present, or any person whom
the chairman of the meeting shall appoint shall act as secretary of such
meeting and keep the minutes thereof.
3.6 DIRECTORS' CONSENT IN LIEU OF MEETING.
Any action required or permitted to be taken at any meeting of the
Board 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
all the directors then in office and such consent is filed with the minutes of
the proceedings of the Board.
3.7 ACTION BY MEANS OF CONFERENCE TELEPHONE OR SIMILAR COMMUNICATIONS
EQUIPMENT.
Any one or more members of the Board may participate in a meeting of
the Board by means of conference telephone or similar communications equipment
by which all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in person at
such meeting.
3.8 COMMITTEES.
The Board may, by resolution or resolutions passed by a majority of
the whole Board, designate one or more committees, each such committee to
consist of one or more directors of the Corporation, which to the extent
provided in said resolution or resolutions shall have and may exercise the
powers of the Board 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, such committee or committees to have such name or
names as may be determined from time to time by resolution adopted by the
Board. A majority of all the members of any such committee may determine its
action and fix the time and place of its meetings, unless the Board shall
otherwise provide. The Board shall have power to change the members of any
such committee at any time, to fill vacancies and to discharge any such
committee, either with or without cause, at any time.
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ARTICLE IV
OFFICERS
4.1 EXECUTIVE OFFICERS.
The principal officers of the Corporation shall be a Chairman, if one
is appointed (and any references to the Chairman shall not apply if a Chairman
has not been appointed), a Chief Executive Officer, a President, a Chief
Financial Officer and a Secretary, and may include such other officers as the
Board may appoint pursuant to Section 4.3 of this Article IV. Any two or more
offices may be held by the same person.
4.2 AUTHORITY AND DUTIES.
All officers, as between themselves and the Corporation, shall have
such authority and perform such duties in the management of the Corporation as
may be provided in these By-laws or, to the extent so provided, by the Board.
4.3 OTHER OFFICERS.
The Corporation may have such other officers, agents and employees as
the Board may deem necessary, including one or more Assistant Secretaries and
one or more Vice Presidents, each of whom shall hold office for such period,
have such authority and perform such duties as the Board, the Chairman, the
Chief Financial Officer or the President may from time to time determine. The
Board may delegate to any principal officer the power to appoint and define the
authority and duties of, or remove, any such officers, agents or employees.
4.4 TERM OF OFFICE, RESIGNATION AND REMOVAL.
(a) All officers shall be elected or appointed by the Board and
shall hold office for such term as may be prescribed by the Board. Each
officer shall hold office until his successor has been elected or appointed and
qualified or until his earlier death or resignation or removal in the manner
hereinafter provided. The Board may require any officer to give security for
the faithful performance of his duties.
(b) Any officer may resign at any time by giving written notice
to the Board, the Chairman, the Chief Executive Officer, the President or the
Secretary. Such resignation shall take effect at the time specified therein
or, if the time be not specified, at the time it is accepted by action of the
Board. Except as aforesaid, the acceptance of such resignation shall not be
necessary to make it effective.
(c) All officers and agents elected or appointed by the Board
shall be subject to removal at any time by the Board or by the stockholders of
the Corporation with or without cause.
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4.5 VACANCIES.
If the office of Chairman, Chief Executive Officer, President, Chief
Financial Officer or Secretary becomes vacant for any reason, the Board shall
fill such vacancy, and if any other office becomes vacant, the Board may fill
such vacancy. Any officer so appointed or elected by the Board shall serve
only until such time as the unexpired term of his predecessor shall have
expired, unless reelected or reappointed by the Board.
4.6 THE CHAIRMAN.
The Chairman shall give counsel and advice to the Board and the
officers of the Corporation on all subjects concerning the welfare of the
Corporation and the conduct of its business and shall perform such other duties
as the Board may from time to time determine. Unless otherwise determined by
the Board, he shall preside at meetings of the Board and of the Stockholders at
which he is present.
4.7 THE CHIEF EXECUTIVE OFFICER.
The Chief Executive Officer shall be responsible for the general
direction of the business and affairs of the Corporation, subject to the
authority of the Board of Directors and the Chairman, and shall perform such
other duties as may from time to time be assigned to him by the Board of
Directors, the Chairman, or as prescribed by law or these By-laws.
4.8 THE PRESIDENT.
The President shall be the chief operating and administrative officer
of the Corporation, subject to the authority of the Board of Directors, the
Chairman and the Chief Executive Officer. After the Chairman and the Chief
Executive Officer, he shall direct the policies and management of the
Corporation. The President shall perform such other duties as from time to
time may be assigned to him by the Board of Directors, the Chairman or the
Chief Executive Officer, or as otherwise prescribed by law of these By-laws.
4.9 THE SECRETARY.
The Secretary shall, to the extent practicable, attend all meetings of
the Board and all meetings of the stockholders and shall record all votes and
the minutes of all proceedings in a book to be kept for that purpose. He may
give, or cause to be given, notice of all meetings of the stockholders and of
the Board, and shall perform such other duties as may be prescribed by the
Board, the Chairman, the Chief Executive Officer or the President, under whose
supervision he shall act. He shall keep in safe custody the seal of the
Corporation and affix the same to any duly authorized instrument requiring it
and, when so affixed, it shall be attested by his signature or by the
signature, if appointed, of an Assistant Secretary. He shall keep in safe
custody the certificate books and stockholder records and such other books and
records as the Board may direct, and shall perform all other duties incident to
the office of Secretary and such other duties as from
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time to time may be assigned to him by the Board, the Chairman, the Chief
Executive Officer or the President.
4.10 THE CHIEF FINANCIAL OFFICER.
The Chief Financial Officer shall have the care and custody of the
corporate funds and other valuable effects, including 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 the Board. The Chief Financial Officer shall disburse the funds
of the Corporation as may be ordered by the Board, taking proper vouchers for
such disbursements, shall render to the Chairman, Chief Executive Officer,
President and directors, at the regular meetings of the Board, or whenever they
may require it, an account of all his transactions as Chief Financial Officer
and of the financial condition of the Corporation and shall perform all other
duties incident to the office of Chief Financial Officer and such other duties
as from time to time may be assigned to him by the Board, the Chairman, Chief
Executive Officer or the President.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1 EXECUTION OF DOCUMENTS.
The Board shall designate, by either specific or general resolution,
the officers, employees and agents of the Corporation who shall have the power
to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks,
drafts and other orders for the payment of money and other documents for and in
the name of the Corporation, and may authorize such officers, employees and
agents to delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation; unless so
designated or expressly authorized by these By-laws, no officer, employee or
agent shall have any power or authority to bind the Corporation by any contract
or engagement, to pledge its credit or to render it liable pecuniarily for any
purpose or amount.
5.2 DEPOSITS.
All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation or otherwise as the Board or
Chief Financial Officer, or any other officer of the Corporation to whom power
in this respect shall have been given by the Board, shall select.
5.3 PROXIES WITH RESPECT TO STOCK OR OTHER SECURITIES OF OTHER
CORPORATIONS.
The Board shall designate the officers of the Corporation who shall
have authority from time to time to appoint an agent or agents of the
Corporation to exercise in the name and on behalf of the Corporation the powers
and rights which the Corporation may have
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as the holder of stock or other securities in any other corporation, and to
vote or consent with respect to such stock or securities. Such designated
officers may instruct the person or persons so appointed as to the manner of
exercising such powers and rights, and such designated officers may execute or
cause to be executed in the name and on behalf of the Corporation and under its
corporate seal or otherwise, such written proxies, powers of attorney or other
instruments as they may deem necessary or proper in order that the Corporation
may exercise its powers and rights.
ARTICLE VI
SHARES AND THEIR TRANSFER; FIXING RECORD DATE
6.1 CERTIFICATES FOR SHARES.
Every owner of stock of the Corporation shall be entitled to have a
certificate certifying the number and class of shares owned by him in the
Corporation, which shall be in such form as shall be prescribed by the Board.
Certificates shall be numbered and issued in consecutive order and shall be
signed by, or in the name of, the Corporation by the Chairman, the Chief
Executive Officer, the President, the Chief Financial Officer or any Vice
President, and by the Secretary (or an Assistant Secretary, if appointed). In
case any officer or officers who shall have signed any such certificate or
certificates shall cease to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed such certificate had not
ceased to be such officer or officers of the Corporation.
6.2 RECORD.
A record in one or more counterparts shall be kept of the name of the
person, firm or corporation owning the shares represented by each certificate
for stock of the Corporation issued, the number of shares represented by each
such certificate, the date thereof and, in the case of cancellation, the date
of cancellation. Except as otherwise expressly required by law, the person in
whose name shares of stock stand on the stock record of the Corporation shall
be deemed the owner thereof for all purposes regarding the Corporation.
6.3 TRANSFER AND REGISTRATION OF STOCK.
(a) The transfer of stock and certificates which represent the
stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title
6 of the Delaware Code (the Uniform Commercial Code), as amended from time to
time.
(b) Registration of transfers of shares of the Corporation
shall be made only on the books of the Corporation upon request of the
registered holder thereof, or of his attorney thereunto authorized by power of
attorney duly executed and filed with the
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Secretary of the Corporation, and upon the surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a stock power
duly executed.
6.4 ADDRESSES OF STOCKHOLDERS.
Each stockholder shall designate to the Secretary an address at which
notices of meetings and all other corporate notices may be served or mailed to
him, and, if any stockholder shall fail to designate such address, corporate
notices may be served upon him by mail directed to him at his post-office
address, if any, as the same appears on the share record books of the
Corporation or at his last known post-office address.
6.5 LOST, DESTROYED AND MUTILATED CERTIFICATES.
The holder of any shares of the Corporation shall immediately notify
the Corporation of any loss, destruction or mutilation of the certificate
therefor, and the Board may, in its discretion, cause to be issued to him a new
certificate or certificates for such shares, upon the surrender of the
mutilated certificates or, in the case of loss or destruction of the
certificate, upon satisfactory proof of such loss or destruction, and the Board
may, in its discretion, require the owner of the lost or destroyed certificate
or his legal representative to give the Corporation a bond in such sum and with
such surety or sureties as it may direct to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss or
destruction of any such certificate.
6.6 REGULATIONS.
The Board may make such rules and regulations as it may deem
expedient, not inconsistent with these By-laws, concerning the issue, transfer
and registration of certificates for stock of the Corporation.
6.7 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
(a) 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, the Board may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted by the Board, and which record date shall be not more than 60 nor less
than 10 days before the date of such meeting. If no record date is fixed by
the Board, 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. 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 may fix a new record date for
the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record
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date is adopted by the Board, and which date shall be not more than 10 days
after the date upon which the resolution fixing the record date is adopted by
the Board. If no record date has been fixed by the Board, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board is required by the
Delaware Statute, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in this State, its principal
place of business or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. If no record date has
been fixed by the Board and prior action by the Board is required by the
Delaware Statute, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board adopts the resolution taking such
prior action.
(c) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders 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 may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board adopts the resolution relating thereto.
ARTICLE VII
SEAL
The Board may provide a corporate seal, which shall be in the form of
a circle and shall bear the full name of the Corporation, the year of
incorporation of the Corporation and the words and figures "Corporate Seal -
Delaware."
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year unless
otherwise determined by the Board.
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ARTICLE IX
INDEMNIFICATION AND INSURANCE
9.1 INDEMNIFICATION.
(a) As provided in the Certificate, to the fullest extent
permitted by the Delaware Statute as the same exists or may hereafter be
amended, a director of the Corporation shall not be liable to the Corporation
or its stockholders for breach of fiduciary duty as a director.
(b) Without limitation of any right conferred by paragraph (a)
of this Section 9.1, each person who was or is made a party or is threatened to
be made a party to or is otherwise involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact that he or
she is or was a director, officer or employee of the Corporation or is or was
serving at the request of the Corporation as a director, officer or employee of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity while serving as a director, officer or employee
or in any other capacity while serving as a director, officer or employee,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware Statute, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights
than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, excise taxes or amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer or employee and shall inure to the benefit of
the indemnitee's heirs, testators, intestates, executors and administrators;
provided, however, that such person 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 a criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; provided further,
however, that no indemnification shall be made in the case of an action, suit
or proceeding by or in the right of the Corporation in relation to matters as
to which it shall be adjudged in such action, suit or proceeding that such
director, officer, employee or agent is liable to the Corporation, unless a
court having jurisdiction shall determine that, despite such adjudication, such
person is fairly and reasonably entitled to indemnification; provided further,
however, that, except as provided in Section 9.1(c) of this Article IX with
respect to proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part thereof)
initiated by such indemnitee was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Article IX shall
be a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of
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its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware Statute requires, an advancement of expenses
incurred by an indemnitee in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay
all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section or otherwise.
(c) If a claim under Section 9.1(b) of this Article IX is not
paid in full by the Corporation with 60 days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement
of expenses, in which case the applicable period shall be 20 days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in
any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of any undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) in any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not
met the applicable standard of conduct set forth in the Delaware Statute.
Neither the failure of the Corporation (including the Board, independent legal
counsel, or the stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware Statute, nor an actual determination by the
Corporation (including the Board, independent legal counsel or the
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee
to enforce a right to indemnification or to an advancement of expenses
hereunder, or by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the indemnitee is
not entitled to be indemnified, or to such advancement of expenses, under this
Section or otherwise shall be on the Corporation.
(d) The rights to indemnification and to the advancement of
expenses conferred in this Article IX shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the Charter,
agreement, vote of stockholders or disinterested directors or otherwise.
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9.2 INSURANCE.
The Corporation may purchase and maintain insurance, at its expense,
to protect itself and any person who is or was a director, officer, employee or
agent of the Corporation or any person who is or was serving at the request of
the Corporation as a director, officer, employer or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
Delaware Statute.
ARTICLE X
AMENDMENT
Any by-law (including these By-laws) may be adopted, amended or
repealed by the vote of the holders of a majority of the shares then entitled
to vote or by the stockholders' written consent pursuant to Section 2.10 of
Article II, or by the vote of the Board or by the directors' written consent
pursuant to Section 6 of Article III.
* * * * *
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