EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
MEDSOURCE TECHNOLOGIES, INC.
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ARTICLE I
OFFICES
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SECTION 1. REGISTERED OFFICE. The corporation's registered office in
the State of Delaware shall be established and maintained at the office of
United Corporate Services, Inc., 15 East North Street, in the City of Dover, in
the County of Kent, in the State of Delaware, and United Corporate Services,
Inc. shall be the registered agent of this corporation in charge of the
corporation's registered office in the State of Delaware.
SECTION 2. OTHER OFFICES. The corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
board of directors may from time to time appoint or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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SECTION 1. ANNUAL MEETINGS.
(a) Annual meetings of stockholders for the election of directors and
for such other business as may be stated in the notice of the meeting, shall be
held at such place, either within or without the State of Delaware, and at such
time and date as the board of directors, by resolution, shall determine and as
set forth in the notice of the meeting.
(b) If the date of the annual meeting shall fall upon a legal holiday,
the meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect a board of directors (or
any part thereof, in accordance with the corporation's certificate of
incorporation) and they may transact such other corporate business as shall be
stated in the notice of the meeting.
SECTION 2. OTHER MEETINGS. Meetings of stockholders for any purpose
other than the election of directors may be held at such time and place, within
or without the State of Delaware, as shall be stated in the notice of the
meeting.
SECTION 3. VOTING.
(a) Except as otherwise provided in the corporation's certificate of
incorporation or in a resolution of the board of directors adopted pursuant to
the corporation's certificate of incorporation and establishing a series of
preferred stock of the corporation, each stockholder entitled to vote in
accordance with the terms of the corporation's certificate of incorporation and
these by-laws shall be entitled to one vote, in person or by proxy, for each
share of stock entitled to be voted held by that stockholder, but no proxy shall
be voted after three years from its date unless that proxy provides for a longer
period. Upon the demand of any stockholder, the vote for directors and the vote
upon any question before the meeting shall be by ballot. All elections for
directors shall be decided by plurality vote; all other questions shall be
decided by a majority vote except as otherwise provided in the corporation's
certificate of incorporation or the laws of the State of Delaware.
(b) A complete list of the stockholders entitled to vote at the
ensuing election, arranged in alphabetical order, with the address of each, and
the number of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present thereat.
SECTION 4. QUORUM. Except as otherwise required by law, by the
corporation's certificate of incorporation or by these by-laws, the presence, in
person or by proxy, of stockholders holding a majority of the stock of the
corporation entitled to be voted shall constitute a quorum at all meetings of
the stockholders. In case a quorum shall not be present at any meeting, the
holders of a majority of the stock of the corporation entitled to be voted
thereat, present in person or by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
the requisite amount of stock entitled to be voted shall be present, in person
or by proxy. At any such adjourned meeting at which the holders of the requisite
amount of stock entitled to be voted are present, in person or by proxy, any
business may be transacted that might have been transacted at the meeting as
originally noticed; but only those stockholders entitled to vote at the meeting
as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof.
SECTION 5. SPECIAL MEETINGS. Except as required by law and as provided
in the corporation's certificate of incorporation, a special meeting of
stockholders for any purpose or purposes (i) may be called at any time by the
chairman or the president and (ii) shall be called by the secretary promptly
following the adoption by the board of directors of a resolution approved by a
majority of the directors of the corporation. Any such call must specify the
matter or matters to be acted upon at such special meeting and only such matter
or matters shall be acted upon thereat. A special meeting may not be called by
the corporation's stockholders.
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SECTION 6. NOTICE OF MEETINGS; WAIVER OF NOTICE. Except as otherwise
may be required by law, notice of each meeting of stockholders, whether an
annual meeting or a special meeting, shall be in writing, shall state the
purpose or purposes of the meeting, the place, date and time of the meeting and,
unless it is an annual meeting, shall indicate that the notice is being issued
by or at the direction of the person or persons calling the meeting, and a copy
thereof shall be delivered or sent by mail (or any other permitted means) to
each stockholder entitled to vote thereat at his address as it appears on the
records of the corporation, not less than 10 nor more than 60 days before the
date of said meeting, unless such stockholder shall have filed with the
secretary of the corporation a written request that notices to such stockholder
be mailed or otherwise delivered to some other address, in which case it shall
be directed to such stockholder at such other address. Notice of an adjourned
meeting need not be given if the time and place to which the meeting is to be
adjourned was announced at the meeting at which the adjournment was taken,
unless (i) the adjournment is for more than 30 days or (ii) the board shall fix
a new record date for such adjournment meeting after the adjournment. Whenever
any notice is required to be given to a stockholder under the provisions of the
General Corporation Law of the State of Delaware, the corporation's certificate
of incorporation or these by-laws, a waiver thereof, signed by the stockholder
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the receipt of such notice. Attendance of a stockholder
at the meeting shall be deemed equivalent to a written waiver of notice of such
meeting.
SECTION 7. ORDER OF BUSINESS.
(a) At the annual meeting, only such business shall be conducted as
shall have been brought before the annual meeting (i) by or at the direction of
the board of directors or (ii) by any stockholder who complies with the
procedures set forth in this Section 7. At any special meeting, only such
business shall be conducted as shall have been set forth in the notice of such
meeting.
(b) Except as otherwise provided in the corporation's certificate of
incorporation:
(i) For a proposal properly to be brought before an annual
meeting by a stockholder, the stockholder must have given timely
notice thereof in proper written form to the secretary of the
corporation. To be timely, a stockholder's notice must be delivered to
or mailed and received at the principal executive offices of the
corporation not less than 90 nor more than 120 days prior to the
annual meeting; provided, however, that in the event that less than
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100 days' notice or prior public disclosure of the date of the annual
meeting is given or made to stockholders, notice by the stockholder to
be timely must be received not later than the close of business on the
tenth day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure was made; and
provided, further, however, that for so long as the corporation is
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subject to Rule 14a-8 under the Securities Exchange Act of 1934, as
amended, or any successor rule of comparable application, any
stockholder proposal that complies with any such rule shall be deemed
to comply with Section 7(b)(i) of this Article II.
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(ii) Notwithstanding anything in these by-laws to the
contrary, no business brought by a stockholder shall be conducted at
the annual meeting of stockholders except in accordance with the
procedures set forth in Section (b) of this Article II. The Chairman
of an annual meeting shall, if the facts so warrant, determine and
declare to the meeting that business was not properly brought before
the annual meeting in accordance with the provisions of this Article
II, and, if he should so determine, he shall so declare to the annual
meeting and any such business not properly brought before the annual
meeting shall not be transacted thereat.
ARTICLE III
DIRECTORS
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SECTION 1. NUMBER AND TERM. Except as otherwise provided in the
corporation's certificate of incorporation, the number of directors constituting
the board of directors may be determined from time to time by a vote of a
majority of the directors then in office; provided, however, that such number
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shall not be less than three or, unless increased in accordance with he next
sentence, more than 10. Except as otherwise provided in the corporation's
certificate of incorporation, any increase or decrease in the number of
directors constituting the board of directors shall require the approval of at
least two thirds (2/3) of all of the members of the board of directors at such
time. Subject to any provision in the corporation's certificate of incorporation
with respect to a classified board of directors, the directors shall be elected
at annual meetings of the stockholders and each director shall be elected to
serve until his or her successor shall be elected and shall qualify. Directors
need not be stockholders.
SECTION 2. RESIGNATIONS. Any director, member of a committee or other
officer may resign at any time. That resignation shall be made in writing, and
shall take effect at the time specified therein, and if no time be specified, at
the time of its receipt by the president or secretary. The acceptance of a
resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. Except as otherwise provided in the
corporation's certificate of incorporation, if the office of any director,
member of a committee or other officer becomes vacant, the remaining directors
in office, though less than a quorum, may, by a majority vote, fill the vacancy
and the person so elected shall hold office for the unexpired term of the
director, member of a committee or other officer who vacated such office, and
until his successor shall be duly elected and qualified or until his earlier
resignation or removal in accordance with the provisions of these by-laws
(provided and only to the extent that such provisions do not conflict with the
corporation's certificate of incorporation); provided, however, that if there
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are no directors then in office due to a vacancy, the stockholders may elect a
successor who shall hold office for the unexpired term and until his successor
shall be duly elected and qualified, or until his earlier resignation or removal
in accordance with the provisions of these by-laws (provided and only to the
extent that such provisions do not conflict with the corporation's certificate
of incorporation).
SECTION 4. NOMINATION OF DIRECTORS, ELECTIONS.
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(a) Nominations for the election of directors may be made by the board
of directors or a committee appointed by the board of directors, or by any
stockholder entitled to vote generally in the election of directors who complies
with the procedures set forth in this Section 4. Directors shall be at least 21
years of age. Directors need not be stockholders. At each meeting of
stockholders for the election of directors at which a quorum is present, the
persons receiving a plurality of the votes cast shall be elected directors. All
nominations by stockholders shall be made pursuant to timely notice in proper
written form to the secretary of the corporation.
(b) Except as otherwise provided in the corporation's certificate of
incorporation the stockholder's notice referred to in the last sentence of
Section 4(a) of this Article III shall:
(i) To be timely, be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 90
nor more than 120 days prior to the meeting; provided, however, that
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in the event that less than 100 days' notice or prior public
disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the tenth day
following the day on which such notice of the date of the meeting was
mailed or such public disclosure was made; and provided, further,
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however, that for so long as the corporation is subject to Rule 14a
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under the Securities Exchange Act of 1934, as amended, or any
successor rule of comparable application, any nomination by a
stockholder for the election of directors that complies with any such
rule shall be deemed to comply with Section 4 of this Article III.
(ii) To be in proper written form, set forth in writing (A)
as to each person whom the stockholder proposes to nominate for
election or reelection as a director, all information relating to such
person that is required to be disclosed in solicitation of proxies for
election of directors, or is otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as
amended, or any successor regulation or law including, without
limitation, such person's written consent to being named in the proxy
statement as a nominee and to serving as director if elected; and (B)
as to the stockholder giving the notice, (x) the name and address, as
they appear on the corporation's books, of such stockholder and (y)
the class and number of shares of the corporation that are
beneficially owned by such stockholder.
(c) In the event that a stockholder seeks to nominate one or more
directors, the secretary shall appoint two inspectors, who shall not be
affiliated with the corporation, to determine whether a stockholder has complied
with this Section 4. If the inspectors shall determine that a stockholder has
not complied with this Section 4, the inspectors shall direct the chairman of
the meeting to declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the by-laws of the corporation, and
the chairman shall so declare to the meeting and the defective nomination shall
be disregarded.
SECTION 5. REMOVAL. Except as otherwise provided in the corporation's
certificate of incorporation, unless the corporation's certificate of
incorporation
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otherwise provides, stockholders may effect the removal of a director only for
cause. If the corporation's certificate of incorporation provides for cumulative
voting and if less than the entire board is to be removed, no director may be
removed without cause if the votes cast against his removal would be sufficient
to elect him if then cumulatively voted at an election of the entire board of
directors, or, if there be classes of directors, at an election of the class of
directors of which he is a part.
SECTION 6. POWERS. The board of directors shall exercise all of the
powers of the corporation except such powers as are by law, or by the
corporation's certificate of incorporation or by these by-laws, conferred upon
or reserved to the stockholders.
SECTION 7. COMMITTEES.
(a) The board of directors may, by resolution or resolutions passed by
a majority of the whole board, designate one or more committees, each committee
to consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of any member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the board of directors to act at the meeting in the place of the absent or
disqualified member or members.
(b) Any committee, to the extent provided in the resolution of the
board of directors, or in these by-laws, 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; but no committee shall have the
power or authority in reference to amending the corporation's certificate of
incorporation, adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution, these by-laws or the
corporation's certificate of incorporation expressly so provide, no committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
SECTION 8. MEETINGS.
(a) Following any annual meeting of the stockholders, the board of
directors may hold its first meeting for the purpose of organization and the
transaction of business, if a quorum be present, immediately thereafter; or the
time and place of that meeting may be fixed by consent in writing of all the
directors.
(b) Regular meetings of the directors may be held without notice at
such places and times as shall be determined from time to time by resolution of
the directors.
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(c) Special meetings of the board may be called by the chairman, vice
chairman, chief executive officer or the president upon the written request of a
majority of the directors upon a notice to each director, and shall be held at
such place or places as may be determined by the directors, or as shall be
stated in the call of the meeting.
(d) Unless otherwise restricted by the corporation's certificate of
incorporation or these by-laws, members of the board of directors or any
committee designated thereby may participate in a meeting of the board of
directors, or any committee thereof, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and that participation in a meeting shall
constitute presence in person at the meeting.
SECTION 9. QUORUM. A majority of the directors shall constitute a
quorum for the transaction of business. If at any meeting of the board there
shall be less than a quorum present, a majority of those present may adjourn the
meeting from time to time until a quorum is obtained, and no further notice
thereof need be given other than by announcement at the meeting that is so
adjourned.
SECTION 10. COMPENSATION. Directors shall not receive any stated
salary for their services as directors or as members of committees, but by
resolution of the board a fixed fee and expenses of attendance may be allowed
for attendance at each meeting. Nothing in these by-laws 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 11. 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, if a written consent thereto is signed
by all members of the board or committee, as the case may be, and that written
consent is filed with the minutes of proceedings of the board or committee.
SECTION 12. WAIVER OF NOTICE. Whenever any notice is required to be
given to directors under the provisions of the General Corporation Law of the
State of Delaware, the corporation's certificate of incorporation or these
by-laws, a waiver thereof, signed by the director entitled to such notice,
whether before or after the time stated herein, shall be deemed equivalent to
the receipt of such notice. Attendance of a director at a meeting shall be
deemed equivalent to a written waiver of notice of such meeting.
ARTICLE IV
OFFICERS
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SECTION 1. OFFICERS.
(a) The board of directors may elect a chairman, a vice-chairman, a
chief executive officer, a president, a chief operating officer, a chief
financial officer, one or more
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vice-presidents and such assistant secretaries and assistant treasurers as they
may deem proper. None of the officers of the corporation need be directors.
(b) Each of the foregoing officers shall have the power and authority
to sign instruments and stock certificates in accordance with section 103(a)(2)
of the Delaware General Corporation Law and to sign agreements on behalf of the
corporation. The officers shall be elected at the first meeting of the board of
directors after each annual meeting of the stockholders. Any two or more offices
may be held at the same time by the same person. Any officer may be removed,
with or without cause, by the board of directors. Any vacancy may be filled by
the board of directors.
SECTION 2. OTHER OFFICERS AND AGENTS. The board of directors may
appoint such other officers and agents as it may deem advisable, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the board of directors.
SECTION 3. CHAIRMAN. The chairman, if one be elected, shall preside at
all meetings of the stockholders and at all meetings of the board of directors,
and shall have such other power and authority and perform such other duties as
may be prescribed by these by-laws or as may be assigned from time to time by
the board of directors.
SECTION 4. VICE-CHAIRMAN. The vice-chairman, if one be elected, shall,
in the absence or disability of the chairman, preside at all meetings of the
stockholders and at all meetings of the board of directors, and shall have such
other power and authority and perform such other duties as may be prescribed by
these by-laws or as may be assigned from time to time by the board of directors
or the chairman.
SECTION 5. CHIEF EXECUTIVE OFFICER.
(a) The chief executive officer, if one be elected, shall, in the
absence or disability of the chairman and vice-chairman, preside at all meetings
of the stockholders and at all meetings of the board of directors, and shall
have general supervision, direction and control of the business and affairs of
the corporation subject to the authorization and control of the board of
directors, and shall have such other power and authority and perform such other
duties as may be prescribed by these by-laws or as may be assigned from time to
time by the board of directors.
(b) In the absence or disability of the chief executive officer, the
president, if available, and if the president is not available the chief
operating officer, if available, shall have the authority, and shall perform the
duties, of the chief executive officer.
SECTION 6. PRESIDENT.
(a) The president, if one be elected, shall, in the absence or
disability of the chairman, vice-chairman and chief executive officer, preside
at all meetings of the stockholders and at all meetings of the board of
directors, and shall have such other power and authority and
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perform such other duties as may be prescribed by these by-laws or as may be
assigned from time to time by the board of directors or the chief executive
officer.
(b) In the absence or disability of the chief executive officer, the
president, if available, shall have the authority, and shall perform the duties,
of the chief executive officer.
SECTION 7. CHIEF OPERATING OFFICER.
(a) The chief operating officer, if one be elected, shall have such
power and authority and perform such duties as may be prescribed by these
by-laws or as may be assigned from time to time by the board of directors.
(b) In the absence or disability of the president, the chief operating
officer, if available, shall have the authority, and shall perform the duties,
of the president. In addition, in the absence or disability of the chief
executive officer and the president, the chief operating officer, if available,
shall have the authority and perform the duties of the chief executive officer.
SECTION 8. CHIEF FINANCIAL OFFICER.
(a) The chief financial officer, if one be elected, shall have such
power and authority and perform such duties as may be prescribed by these
by-laws or as may be assigned from time to time by the board of directors.
(b) In the absence or disability of the president and the chief
operating officer, the chief financial officer, if available, shall have the
authority, and shall perform the duties, of the president. In addition, in the
absence or disability of the chief executive officer, the chief operating
officer and the president, the chief financial officer, if available, shall have
the authority and perform the duties of the chief executive officer.
SECTION 9. VICE-PRESIDENT.
(a) Each vice-president shall have such power and authority and
perform such duties as may be prescribed by these by-laws or as may be assigned
from time to time by the board of directors or the chief executive officer.
(b) The board of directors may designate one or more vice- presidents,
in such order of priority as shall be specified by the board of directors, to
have the authority, and to perform the duties, of the chief executive officer in
the absence or disability of the chief executive officer, the president and the
chief operating officer; provided, however, that no vice-president shall have
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such authority or perform such duties unless specifically designated for that
purpose by the board of directors.
SECTION 10. TREASURER.
(a) The treasurer, if one be elected, shall have the custody of the
corporate funds and securities, shall keep full and accurate account of receipts
and disbursements in books
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belonging to the corporation and shall deposit all moneys and other valuables in
the name and to the credit of the corporation in such depositaries as may be
designated by the board of directors.
(b) The Treasurer shall disburse the funds of the corporation as may
be ordered by the board of directors, or the chief executive officer, taking
proper vouchers for such disbursements. He shall render to the chief executive
officer and board of directors at the regular meetings of the board of
directors, or whenever they may request it, an account of all his transactions
as treasurer and of the financial condition of the corporation. If required by
the board of directors, he shall give the corporation a bond for the faithful
discharge of his duties in such amount and with such surety as the board of
directors shall prescribe.
SECTION 11. SECRETARY.
(a) The secretary, if one be elected, shall give, or cause to be
given, notice of all meetings of stockholders and directors, and all other
notices required by law or by these by- laws, and in case of his absence or
refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the chief executive officer, the president, the chairman,
the vice-chairman or by the board of directors or stockholders, upon whose
requisition the meeting is called as provided in these by-laws.
(b) The secretary shall record all the proceedings of the meetings of
the corporation and of the directors in a book to be kept for that purpose, and
shall perform such other duties as may be assigned to him by the chief executive
officer or the board of directors. He shall have custody of the seal of the
corporation and shall affix the same to all instruments requiring it, when
authorized by the chief executive officer or the board of directors, and attest
the same.
SECTION 12. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.
(a) Assistant treasurers, if any shall be elected, shall, in the
absence of the treasurer, have the authority, and perform the duties, of the
treasurer, and shall have such other power and authority and perform such other
duties as may be prescribed by these by-laws or as may be assigned from time to
time by the board of directors or the chief executive officer.
(b) Assistant secretaries, if any shall be elected, shall, in the
absence of the secretary, have the authority, and perform the duties, of the
secretary, and shall have such other power and authority and perform such other
duties as may be prescribed by these by-laws or as may be assigned from time to
time by the board of directors or the chief executive officer.
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ARTICLE V
INDEMNIFICATION
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SECTION 1. RIGHT TO INDEMNIFICATION. Except as otherwise provided in
the corporation's certificate of incorporation, any person who was or is made a
party or is threatened to be made a party to or is involved in any pending,
threatened, or completed civil, criminal, or administrative action, suit, or
proceeding and any appeal therein and any inquiry or investigation in connection
therewith or which could lead thereto (a "proceeding"), by reason of his or her
being or having been a director or officer of the corporation, or by reason of
his or her being or having been a director or officer (or position of similar
import) of any other corporation (domestic or foreign), foundation, limited
liability company, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise (whether or not for profit), serving
as such at the request of the corporation, shall be indemnified and held
harmless by the corporation to the fullest extent permitted by the laws of the
state of Delaware, as the same exist 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 said law permitted
prior to such amendment), from and against any and all reasonable costs,
disbursements and attorneys' fees incurred or suffered in connection with any
such proceeding, and any and all amounts paid or to be paid in satisfaction of
settlements, judgments, fines, excise taxes, and penalties (including those
payable under the Employee Retirement Income Security Act of 1974, as amended),
in connection with any such proceeding, and such indemnification shall continue
as to a person who has ceased to be a director or officer and shall inure to the
benefit of his or her heirs, executors, administrators, and assigns, provided,
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however, that the corporation shall indemnify any such person seeking
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indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was specifically
authorized by the board of directors of the corporation. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
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contendere or its equivalent, shall not of itself create a presumption that such
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director or officer did not meet the applicable standards of conduct required
under the laws of the state of Delaware to be so indemnified.
SECTION 2. DETERMINATION THAT INDEMNIFICATION IS PROPER.
(a) Any indemnification of a director or officer of the corporation
under this Article (unless ordered by a court) shall be made by the corporation
unless a determination is made that indemnification of the director or officer
is not proper in the circumstances because he or she has not met the applicable
standard of conduct or because indemnification would otherwise be prohibited
under the laws of the state of Delaware. Any such determination shall be made
(i) by the board of directors by majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined), or (ii) if a quorum of the
board of directors is not obtainable, or even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel (as hereinafter
defined), to be selected by the board of directors, in a written opinion to the
board of directors, a copy of which shall be delivered to the indemnitee, or
(iii) by the stockholders of
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the corporation. If it is so determined that the indemnitee is entitled to
indemnification, payment to the indemnitee shall be promptly made.
(b) For purposes of this section, "Disinterested Director" means a
director of the corporation who is not and was not a party to or otherwise
interested in the matter in respect of which indemnification is sought by the
indemnitee, and "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of law and neither presently is, nor in the
past five years has been, retained to represent: (a) the corporation or the
indemnitee in any matter material to either such party, or (b) any other party
to the matter giving rise to a claim for indemnification. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the corporation or the
indemnitee in an action to determine the indemnitee's rights under this section.
SECTION 3. ADVANCE PAYMENT OF EXPENSES. The right to indemnification
in this Article V shall be a contract right and shall include the right to be
paid by the corporation the expenses (including attorneys' fees) incurred by any
director or officer in connection with the proceeding in advance of the final
disposition of such proceeding as authorized by the board of directors;
provided, however, that if the board of directors or the laws of the state of
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Delaware so require, the payment of expenses in advance shall be made only upon
receipt by the corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such person is not entitled to be indemnified under this section
and the laws of the state of Delaware.
SECTION 4. PROCEDURE FOR INDEMNIFICATION. Any indemnification of a
director or officer of the corporation, or advance of costs, charges or expenses
to a director or officer under this Article, shall be made promptly, and in any
event within 60 days, upon the written request of the director or officer. If a
determination by the corporation that the director or officer is entitled to
indemnification or advances pursuant to this Article is required, and the
corporation fails to respond within 60 days to a written request therefor, the
corporation shall be deemed to have approved such request.
SECTION 5. SAVINGS CLAUSE. If this Article or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
shall nevertheless indemnify each director or officer as to costs, charges, and
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative, or investigative, including any action by or in the
right of the corporation, to the full extent permitted by any applicable portion
of this Article that shall not have been invalidated and to the full extent
permitted by applicable law.
ARTICLE VI
MISCELLANEOUS
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SECTION 1. CERTIFICATES OF STOCK. Certificates of stock, signed by the
chairman or vice chairman of the board of directors, if they be elected,
president or vice-
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president, and the treasurer or an assistant treasurer, or secretary or an
assistant secretary, shall be issued to each stockholder certifying the number
of shares owned by him in the corporation. Any or all the signatures may be
facsimiles.
SECTION 2. LOST CERTIFICATES. A new certificate of stock may be issued
in the place of any certificate theretofore issued by the corporation, alleged
to have been lost or destroyed, and the directors may, in their discretion,
require the owner of the lost or destroyed certificate, or his legal
representatives, to give the corporation a bond, in such sum as they may direct,
not exceeding double the value of the stock, to indemnify the corporation
against any claim that may be made against it on account of the alleged loss of
the certificate, or the issuance of the new certificate.
SECTION 3. TRANSFER OF SHARES. The shares of stock of the corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon transfer the
old certificates shall be surrendered to the corporation by the delivery thereof
to the person in charge of the stock and transfer books and ledgers, or to such
other person as the directors may designate, by whom they shall be canceled, and
new certificates shall thereupon be issued. A record shall be made of each
transfer and whenever a transfer shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer.
SECTION 4. STOCKHOLDERS RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than 60 nor less than ten days
before the date of the meeting, nor more than 60 days before any other action. 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
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meeting.
SECTION 5. DIVIDENDS. Subject to the provisions of the corporation's
certificate of incorporation, the board of directors may, out of funds legally
available therefor at any regular or special meeting, declare dividends upon the
capital stock of the corporation as and when they deem expedient. Before
declaring any dividend there may be set apart out of any funds of the
corporation available for dividends, such sum or sums as the directors from time
to time in their discretion deem proper for working capital or as a reserve fund
to meet contingencies or for equalizing dividends or for such other purposes as
the directors shall deem conducive to the interests of the corporation.
SECTION 6. SEAL. The corporate seal shall be circular in form and
shall contain the name of the corporation, the year of its creation and the
words "CORPORATE SEAL DELAWARE." The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
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SECTION 7. FISCAL YEAR. The fiscal year of the corporation shall be
determined by resolution of the board of directors.
SECTION 8. CHECKS. All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers, agent or agents of the
corporation, and in such manner, as shall be determined from time to time by
resolution of the board of directors.
SECTION 9. GIVING OF NOTICE.
(a) Whenever any notice is required by these by-laws to be given,
personal notice is not meant unless expressly so stated, and any notice so
required shall be deemed to be sufficient if given by depositing the same in the
United States mail, postage prepaid, addressed to the person entitled thereto at
his address as it appears on the records of the corporation, and that notice
shall be deemed to have been given on the day of the mailing. Stockholders not
entitled to vote shall not be entitled to receive notice of any meetings except
as otherwise provided by statute.
(b) Without limiting the manner by which notice otherwise may be given
effectively to directors, any notice to directors given by the corporation under
any provision of these by-laws, the corporation's certificate of incorporation
or the laws of the State of Delaware shall be effective if given by a form of
electronic transmission. Notice given pursuant to the foregoing sentence shall
be deemed given: (i) if by facsimile telecommunications, when directed to a
number that the director has given to the corporation, (ii) if by electronic
mail, when directed to an electronic mail address that the director has given to
the corporation, and (iii) if by any other form of electronic transmission, when
directed to the director.
(c) Whenever any notice is required to be given under the provisions
of any law, or under the provisions of the corporation's certificate of
incorporation or these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to that notice, whether before or after the time
stated therein, shall be deemed equivalent to the receipt of such notice.
SECTION 10. VOTING UPON STOCKS. Unless otherwise ordered by the board
of directors, any officer of the corporation shall have full power and authority
on behalf of the corporation to attend and to act and to vote in person or by
proxy at any meeting of the holders of securities of any corporation in which
the corporation may own or hold stock or other securities, and at any such
meeting shall possess and may exercise in person or by proxy any and all rights,
powers and privileges incident to the ownership of such stock or other
securities that the corporation, as the owner or holder thereof, might have
possessed and exercised if present. Unless otherwise ordered by the board of
directors, any officer of the corporation may also execute and deliver on behalf
of the corporation powers of attorney, proxies, waivers of notice and other
instruments relating to the stocks or securities owned or held by the
corporation.
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ARTICLE VII
AMENDMENTS
----------
These by-laws may be altered or repealed and by-laws may be made at
any annual meeting of the stockholders or at any special meeting thereof if
notice of the proposed alteration or repeal of the by-law or by-laws to be made
be contained in the notice of that special meeting, by the affirmative vote of
the holders of a majority of the shares of the corporation entitled to be voted
thereat, or by the affirmative vote of a majority of the board of directors, at
any regular meeting of the board of directors, or at any special meeting of the
board of directors, if notice of the proposed alteration or repeal, or of the
by-law or by-laws to be made, be contained in the notice of that special
meeting; provided, however, that the last sentence of Section 5 and Section 7(b)
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of Article II and Sections 1, 3, 4 and 5 of Article III may only be amended,
altered or repealed by the affirmative vote of the holders of at least two
thirds (66-2/3%) of all of the shares of common stock of the corporation and
each other class or series of stock of the corporation entitled to be voted with
such common stock, voting together as a single class. Notwithstanding anything
contained in these by-laws to the contrary, the affirmative vote of the holders
of at least two thirds (66-2/3%) of all of the shares of common stock of the
corporation and each other class or series of stock of the corporation entitled
to be voted with such common stock, voting together as a single class, shall be
required to alter, amend, repeal or adopt any provision inconsistent with this
Article VII.
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