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Exhibit 99.4
NEOPROBE CORPORATION
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AMENDED AND RESTATED BY-LAWS
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AS AMENDED JULY 18, 1995 AND MAY 30, 1996
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ARTICLE I
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OFFICES
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SECTION 1. REGISTERED OFFICE. The registered office of the corporation
in the state of Delaware shall be located at Corporation Trust Center, 1209
Orange Street, Wilmington, Delaware, County of New Castle. The name of the
corporation's registered agent at such address shall be the Corporation Trust
Company. The registered office and/or registered agent of the corporation may be
changed from time to time by action of the board of directors.
SECTION 2. OTHER OFFICES. The corporation may also have offices at such
other places, both within and without the state of Delaware, as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
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MEETINGS OF STOCKHOLDERS
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SECTION 1. PLACE AND TIME OF MEETINGS. An annual meeting of the
stockholders shall be held each year within 13 months after the last annual
meeting for the purpose of electing directors and conducting such other proper
business as may come before the meeting. The date, time, and place of the annual
meeting shall be determined by the chairman of the board; provided, that if the
chairman of the board does not make such determination within 12 months after
the last annual meeting, the board of directors shall determine the date, time
and place of such meeting.
(The following section was amended by the Board of Directors on July 18, 1995)
SECTION 2. SPECIAL MEETINGS. The board of directors may call a special
meeting of the stockholders for any purpose or purposes and such meeting may be
held at such time and place, within or without the State of Delaware, as may be
determined by the board of directors.
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Business transacted at any special meeting of stockholders shall be limited to
the purpose or purposes stated in the notice of meeting as required by Section 3
of this Article II. No officer, director nor stockholder shall have the power to
call a meeting of stockholders without the authorization of the board of
directors.
SECTION 3. NOTICE. Whenever stockholders are required or permitted to
take action at a meeting, written notice stating the place, date, time and, in
the case of special meetings, the purpose or purposes of such meeting, shall be
given to each stockholder entitled to vote at such meeting not less than 10 nor
more than 60 days before the date of the meeting; except that where the matter
to be acted on is a merger of the corporation or a sale of all or substantially
all of its assets, such notice shall be given not less than 20 nor more than 60
days before the date of the meeting. All such notices shall be delivered, either
personally or by mail, by or at the direction of the board of directors, the
chief executive officer, or the secretary and, if mailed, such notice shall be
deemed to be delivered when deposited with the United States mail, postage
prepaid, addressed to the stockholder at the address of the stockholder as the
same appears on the records of the corporation.
SECTION 4. STOCKHOLDERS LIST. The officer having charge of the stock
ledger of the corporation shall make, at least 10 days before every meeting of
the stockholders, a complete list of the stockholders entitled to vote at such
meeting arranged in alphabetical order, 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
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 also shall
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.
SECTION 5. QUORUM. The holders of a majority of the outstanding shares
of capital stock entitled to vote at a meeting, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders, except
as otherwise provided by statute or by the certificate of incorporation. A
quorum that is present to organize a meeting shall not be broken by the
subsequent withdrawal of one or more stockholders. If a quorum is not present,
the holders of a majority of the shares present in person or represented by
proxy at the meeting, and entitled to vote at the meeting, may adjourn the
meeting to another time and/or place.
SECTION 6. ADJOURNED MEETINGS. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting the corporation may
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transact any business that might have been transacted at the original meeting.
If the adjournment is for more than 30 days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 7. VOTE REQUIRED. When a quorum is present, the affirmative
vote of the majority of shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall be the act of the
stockholders, unless the question is one upon which by express provisions of an
applicable law, certificate of incorporation or these by-laws a different vote
is required, in which case such express provision shall govern and control the
decision of such question.
SECTION 8. VOTING RIGHTS. Except as otherwise provided by the General
Corporation Law of the state of Delaware or by the certificate of incorporation
of the corporation or any amendments thereto and subject to Section 10 of this
Article II, every stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of common stock held
by such stockholder.
SECTION 9. PROXIES. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for such stockholder
by proxy. Each proxy shall be in writing executed by the stockholder giving the
proxy or the stockholder's duly authorized attorney. No proxy shall be valid
after the expiration of 3 years from its date, unless the proxy provides for a
longer period. Unless and until voted, every proxy shall be revocable at the
pleasure of the stockholder who executed it or the stockholder's legal
representatives or assigns, except in those cases where an irrevocable proxy
permitted by statute has been given.
SECTION 10. FIXING A RECORD DATE FOR STOCKHOLDER MEETINGS. 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 of
directors 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 of
directors, and which record date shall not be more than 60 nor less than 10 days
before the date of such meeting. If no record date is fixed by the board of
directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be the close of business on the next
day 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 of directors may fix a new record date for the
adjourned meeting.
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(The following section was added by the Board of Directors on July 18, 1995)
SECTION 11. CONDUCT OF MEETINGS. The board of directors shall establish
the agenda of each meeting of the stockholders, annual or special, at or prior
to the calling thereof. No proposal of any corporate action by any stockholder
shall be considered at any meeting of stockholders unless the stockholder who
intends to propose such action has delivered a timely written notice of his
intention to put such proposal before the meeting to the executive offices of
the Corporation. A notice of proposal will be deemed to not be timely unless it
has been received by the Corporation within the time limits prescribed by
paragraph (a)(iii) of Rule 14a-8 of the Proxy Rules of the Securities and
Exchange Commission. The board of directors may determine that a proposal
submitted by a stockholder pursuant to this section has insufficient
relationship to the business of the Corporation to justify delay, disruption or
other interference with the meeting process or that implementation of such
proposal would be contrary to applicable law, and upon making such
determination, exclude such proposal from consideration at the meeting of
stockholders with respect to which such proposal was submitted. Except as
otherwise determined by the board of directors in advance of a meeting of
stockholders, the order of business at all meetings of the stockholders and all
matters relating to the manner of conducting the meeting shall be determined by
the chairman of the meeting, whose decisions may be overruled only by the
affirmative vote of the majority of shares present in person or represented by
proxy at the meeting and entitled to vote on the matter. Meetings shall be
conducted in a manner designed to accomplish the business of the meeting in a
prompt and orderly fashion and to be fair and equitable to all stockholders, but
it shall not be necessary to follow any manual of parliamentary procedure.
ARTICLE III
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DIRECTORS
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SECTION 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by or under the direction of the board of directors.
SECTION 2. NUMBER, ELECTION AND TERM OF OFFICE. The number of directors
which shall constitute the whole board initially shall be 9. Thereafter, the
number of directors shall be established from time to time by resolution of the
board. The directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote in
the election of directors. The directors shall be elected in this manner at the
annual meeting of the stockholders, except as provided in Section 4 of this
Article III. Each director elected shall hold office until a successor is duly
elected and qualified, or until his or her earlier death, resignation, or
removal, as hereinafter provided.
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(The following paragraph was added by the Board of Directors on July 18, 1995)
At a meeting of stockholders at which directors are to be elected, only
persons nominated as candidates shall be eligible for election as directors.
Persons may be nominated as candidates by the board of directors or a duly
constituted committee thereof, or by any stockholder entitled to vote for the
election of directors. Such nominations, if not made by the board of directors
or a duly constituted committee thereof, shall be made only by a written notice
(a) setting forth (i) the name, age, business address and residence address of
each nominee proposed in such notice, (ii) the principal occupation or
employment of each such nominee, and (iii) the number of shares of capital stock
of the Corporation beneficially owned by each such nominee; (b) signed and
verified by the stockholder making such nomination; and (c) delivered to the
secretary of the Corporation, together with each such nominee's written
acceptance of such nomination and agreement to serve if elected, not less than
one hundred twenty (120) days before the first anniversary of the date of the
mailing of the notice of the most recently concluded annual meeting, if such
nomination is for an election to be held at an annual meeting; provided,
however, that if the date of such annual meeting is more than thirty (30) days
before or after the first anniversary of the most recently concluded annual
meeting, or if such election is to be held at a special meeting, such notice
shall be delivered to the Corporation not more than seven (7) days after the
date of the notice of such annual or special meeting.
(At the 1996 Annual Meeting of Stockholders, held May 30, 1996 the
Stockholders duly adopted a resolution amending these By-laws by adding the
following paragraph to the end of this Section 2 of Article III:)
Notwithstanding any other provision set forth in the By-laws of the
Company, the board of directors shall be divided into three classes; the term of
office of those of the first class to expire at the annual meeting next ensuing;
of the second class one year thereafter; of the third class two years
thereafter; and at each annual election held after the initial adoption of this
by-law by the stockholders and the election of directors held at the meeting at
which this by-law is adopted, directors shall be chosen for a full term of three
years, as the case may be, to succeed those whose terms expire. When this by-law
is initially adopted by the stockholders, the board of directors shall consist
of nine members and each class shall consist of three members. Thereafter, the
board of directors may fix the total number of directors constituting the full
board of directors and the number of directors in each class, but the total
number of directors shall not exceed seventeen (17) nor shall the number of
directors in any class exceed six (6). Subject to the foregoing, the classes of
directors need not have the same number of members. No reduction in the total
number of directors or in the number of directors in any class shall be
effective to remove any director or to reduce the term of any director. If the
board of directors increases the number
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of directors in a class, it may fill the vacancy created thereby for the full
remaining term of a director in that class even though such term may extend
beyond the next annual election. The board of directors may fill any vacancy
occurring for any other reason for the full remaining term of the director whose
death, resignation or removal caused the vacancy, even though such term may
extend beyond the next annual election.
SECTION 3. REMOVAL AND RESIGNATION. Any director or the entire board of
directors may be removed at any time by the holders of a majority of the shares
then entitled to vote at an election of directors. Whenever the holders of any
class or series are entitled to elect one or more directors by the provisions of
the corporation's certificate of incorporation, the provisions of this section
shall apply, in respect to the removal of a director or directors so elected, to
the vote of the holders of the outstanding shares of that class or series and
not to the vote of the outstanding shares as a whole. Any director may resign at
any time upon written notice to the corporation.
SECTION 4. VACANCIES. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director. Each director so chosen shall hold office until a
successor is duly elected and qualified, or until his or her earlier death,
resignation, or removal, as herein provided.
SECTION 5. COMPENSATION. The board of directors may from time to time
fix the compensation of directors for their services in that capacity. The
compensation of a director may consist of an annual fee, or a fee for attendance
at each regular or special meeting of the board, or any meeting of any committee
of the board of which such director is a member, or a combination of fees of
both types; provided, that nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. The board also may provide for the
reimbursement to any director of expenses incurred in attending any meeting of
the board or any committee of the board of which such director is a member.
SECTION 6. ANNUAL MEETINGS. The annual meeting of each newly elected
board of directors shall be held without notice immediately after, and at the
same place as, the annual meeting of stockholders.
SECTION 7. OTHER MEETINGS AND NOTICE. Regular meetings, other than the
annual meeting, of the board of directors may be held without notice at such
time and at such place as shall from time to time be determined by resolution of
the board. Special meetings of the board of directors may be called by or at the
request of any director on at least 24 hours notice to each director, either
personally, by telephone, by mail, by telegraph, or by facsimile transmission.
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SECTION 8. QUORUM, REQUIRED VOTE, AND ADJOURNMENT. A majority of the
total number of directors shall constitute a quorum for the transaction of
business. The vote of a majority of directors present at a meeting at which a
quorum is present shall be the act of the board of directors. If a quorum shall
not be present at any meeting of the board of directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
SECTION 9. COMMITTEES. The board of directors may, by resolution 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, which
to the extent provided in such resolution or these by-laws, shall have and may
exercise the powers of the board of directors in the management and affairs of
the corporation, except as otherwise limited by law. The board of directors 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. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors. Each committee
shall keep regular minutes of its meetings and report the same to the board of
directors when required.
SECTION 10. COMMITTEE RULES. Each committee of the board of directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by a resolution of the board of
directors designating such committee. In the event that a member and that
member's alternate, if alternates are designated by the board of directors as
provided in Section 9 of this Article III, of such committee is or are absent or
disqualified, 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 place of any such absent or disqualified member.
SECTION 11. COMMUNICATIONS EQUIPMENT. Members of the board of directors
or any committee thereof may participate in and act at any meeting of such board
or committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this section shall
constitute presence in person at the meeting.
SECTION 12. WAIVER OF NOTICE. Any member of the board of directors or
any committee thereof who is present at a meeting shall be conclusively presumed
to have waived notice of such meeting, except when such member attends 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.
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SECTION 13. ACTION BY WRITTEN CONSENT. Unless otherwise restricted by
the certificate of incorporation, any action required or permitted to be taken
at any meeting of the board of directors, or of any committee thereof, may be
taken without a meeting, if all members of the board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the board or committee.
ARTICLE IV
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OFFICERS
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SECTION 1. NUMBER. The executive officers of the corporation shall be
chosen by the board of directors and shall consist of: a chairman of the board,
a president, one or more vice-presidents, a secretary, and a treasurer. The
board of directors may also choose such other officers and assistant officers as
it may deem necessary or desirable. The chairman of the board shall be selected
among the directors, but no other executive officer need be a member of the
board. Any number of offices may be held by the same person. In its discretion,
the board of directors may choose not to fill any office for any period as it
may deem advisable.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
shall be elected by the board of directors, and each officer shall hold office
until a successor is duly elected and qualified, or until his or her earlier
death, resignation, or removal, as hereinafter provided.
SECTION 3. REMOVAL. Any officer or agent elected by the board of
directors may be removed for cause or without cause by the board of directors,
or by the chairman of the board or the president acting under authority
delegated to him by the board, provided that any such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
SECTION 4. VACANCIES. Any vacancy occurring in any office because of
death, resignation, removal, disqualification, or otherwise may be filled by the
board of directors.
SECTION 5. COMPENSATION. Compensation of all officers shall be fixed by
the board of directors and no officer shall be prevented from receiving such
compensation by virtue of his or her also being a director of the corporation.
SECTION 6. CHAIRMAN OF THE BOARD. The chairman of the board shall be
the chief executive officer of the corporation, shall be selected from among the
directors of the corporation, and shall be in the general and active charge of
the entire business and affairs of the corporation, subject to the powers of the
board of directors, and shall be its chief policy making officer. He or she
shall preside at all meetings of the board of directors and stockholders, and
shall have such other powers and perform such other duties as may be prescribed
by the board of directors or provided in these by-laws.
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SECTION 7. PRESIDENT. The president shall be the chief operating
officer and shall have all operating responsibility for the day to day business
of the corporation, and all corporate functions shall report to the president.
In the absence of a chairman of the board, the president shall preside at all
meetings of the stockholders and of the board of directors. The president shall
have such other powers and perform such other duties as may be prescribed by the
chairman of the board or the board of directors or as may be provided in these
by-laws.
SECTION 8. VICE-PRESIDENTS. The vice-president, or if there shall be
more than one, the vice-presidents in the order determined by the board of
directors shall, in the absence or disability of the president, act with all of
the powers and be subject to all restrictions of the president. The
vice-presidents also shall perform such other duties and have such other powers
as the board of directors, the chairman of the board, the president, or these
by-laws may, from time to time, prescribe.
SECTION 9. SECRETARY AND ASSISTANT SECRETARIES. The secretary shall
attend all meetings of the board of directors, all meetings of the committees
thereof, and all meetings of the stockholders, and record all such proceedings
of such meetings in a book to be kept for that purpose. The assistant secretary,
or if there be more than one, the assistant secretaries in the order determined
by the chairman of the board, shall, in the absence or disability of the
secretary, perform the duties 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 thereof; shall deposit all
moneys and other valuable effects in the name of the corporation; shall cause
the funds of the corporation to be disbursed when such disbursements have been
duly authorized. If required by the board of directors, the treasurer and each
assistant treasurer shall give the corporation a bond for such term, in such
sums and with such sureties as shall be satisfactory to the board of directors
for the faithful performance of the duties of the office of treasurer. The
assistant treasurer, or if there shall be more than one, the assistant
treasurers in the order determined by the chairman of the board, shall in the
absence or disability of the treasurer, perform the duties of the treasurer.
SECTION 11. OTHER OFFICERS, ASSISTANT OFFICERS, AND AGENTS. Officers,
assistant officers and agents, if any, shall have such authority and perform
such duties as may from time to time be prescribed by resolution of the board of
directors.
SECTION 12. ABSENCE OR DISABILITY OF OFFICERS. In the case of the
absence or disability of any officer of the corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the chairman of the board or the president may delegate the powers
and duties of such officer to any other officer.
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ARTICLE V
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INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
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SECTION 1. INDEMNIFICATION. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to:
(a) any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; the termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful; or
(b) any threatened, pending or completed action or suit
by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
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To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
SECTION 2. STANDARD OF CONDUCT. Any indemnification under subsections
(a) and (b) of Section 1 of this Article V (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in said subsections (a) and (b). Such determination shall be
made (1) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
SECTION 3. PAYMENT OF EXPENSES. Expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative, or investigative action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in this Article V.
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
SECTION 4. NOT EXCLUSIVE. The indemnification and advancement of
expenses provided by, or granted pursuant to, the provisions of this Article V
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the certificate
of incorporation, or any agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
SECTION 5. INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
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SECTION 6. DEFINITIONS.
(a) For purposes of this Article V, references to "the
corporation" shall include, in addition to the corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article V with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
(b) For purposes of this Article V, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this Article V.
SECTION 7. CONTRACTUAL NATURE. This Article V shall be deemed to be a
contract between the corporation and each director and officer who serves as
such at any time while this Article V is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought based in whole or in part
upon such state of facts. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article V shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
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ARTICLE VI
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CERTIFICATES OF STOCK
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SECTION 1. FORM. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation by,
the chairman of the board of directors or the president or a vice-president, and
the secretary or an assistant secretary, or the treasurer or an assistant
treasurer of the corporation, certifying the number of shares owned by such
holder of the corporation. If such a certificate is countersigned (1) by a
transfer agent or an assistant transfer agent other than the corporation or one
of its employees or (2) by a registrar, other than the corporation or one of its
employees, the signature of any such chairman of the board of directors,
president, vice-president, secretary, assistant secretary, treasurer or
assistant treasurer may be facsimiles. In case any officer or officers who have
signed, or whose facsimile signature or signatures have been used on, any such
certificate or certificate, shall cease to be such officer or officers of the
corporation whether because of death, resignation, or otherwise before such
certificate or certificates have been delivered by the corporation, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates or whose
facsimile signature or signatures have been used thereon had not ceased to be
such officer or officers of the corporation. The board of directors may appoint
a bank or trust company organized under the laws of the United States or any
state thereof to act as its transfer agent or registrar, or both in connection
with the transfer of any class or series of securities of the corporation.
SECTION 2. LOST CERTIFICATES. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or as a condition precedent to the
issuance thereof, the board of directors may require the owner of such lost,
stolen, or destroyed certificate or certificates, or the owner's representative,
to give the corporation a bond sufficient to indemnify the corporation against
any claim that may be made against the corporation on account of the loss,
theft, or destruction of any such certificate or the issuance of such new
certificate.
SECTION 3. FIXING A RECORD DATE FOR PURPOSES OTHER THAN FOR STOCKHOLDER
MEETINGS. In order that the corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment or any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion, or exchange of stock, or for the purposes of any other
lawful action, the board of directors 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
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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 of directors adopts
the resolution relating thereto.
ARTICLE VII
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GENERAL PROVISIONS
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SECTION 1. FISCAL YEAR. The fiscal year of the corporation shall end on
December 31 unless otherwise fixed by resolution of the board of directors.
SECTION 2. CORPORATE SEAL. The board of directors shall provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the corporation 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.
SECTION 3. VOTING SECURITIES OWNED BY THE CORPORATION. Voting
securities in any other corporation held by the corporation shall be voted by
the chairman of the board or the president, unless the board of directors
specifically confers authority to vote with respect thereto, which authority may
be general or confined to specific instances, upon some other person or officer.
Any person authorized to vote securities shall have the power to appoint
proxies, with general power of substitution.
SECTION 4. INSPECTION OF BOOKS AND RECORDS. Any stockholder of record,
in person or by attorney or other agent, shall, upon written demand under oath
stating the purpose thereof, have the right during the usual hours for business
to inspect for any proper purpose the corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies or extracts
therefrom. A proper purpose shall mean any purpose reasonably related to such
person's interest as a stockholder. In every instance where an attorney or other
agent shall be the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing that
authorizes the attorney or other agent to so act on behalf of the stockholder.
The demand under oath shall be directed to the corporation at its principal
place of business.
SECTION 5. SECTION HEADINGS. Section headings in these by-laws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
SECTION 6. INCONSISTENT PROVISIONS. In the event that any provision of
these by-laws is or becomes inconsistent with any provision of the certificate
of incorporation, the General Corporation Law of the state of Delaware, or any
other applicable law, the provision of these by-
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laws shall not be given any effect to the extent of such inconsistency but shall
otherwise be given full force and effect.
ARTICLE VIII
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AMENDMENTS
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These by-laws may be amended, altered or repealed and new by-laws
adopted at any meeting of the board of directors by a majority vote. The fact
that the power to adopt, amend, alter or repeal the by-laws has been conferred
upon the board of directors shall not divest the stockholders of the same
powers.
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