EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
E-Z-EM, Inc.
A Delaware Corporation
Effective January 17, 2005
TABLE OF CONTENTS
Page
ARTICLE I
OFFICES
Section 1. Registered Office.................................................1
Section 2. Other Offices.....................................................1
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings.................................................1
Section 2. Annual Meetings...................................................2
Section 3. Special Meetings..................................................2
Section 4. Nature of Business at Meetings of Stockholders....................3
Section 5. Nomination of Directors...........................................5
Section 6. Notice............................................................8
Section 7. Adjournments......................................................9
Section 8. Quorum............................................................9
Section 9. Voting...........................................................10
Section 10. Consent of Stockholder in Lieu of Meeting........................10
Section 11. Proxies..........................................................13
Section 12. List of Stockholders Entitled to Vote............................15
Section 13. Record Date......................................................16
Section 14. Stock Ledger.....................................................16
Section 15. Conduct of Meetings..............................................17
Section 16. Inspectors of Election...........................................18
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors.................................19
Section 2. Vacancies........................................................20
Section 3. Duties and Powers................................................20
Section 4. Meetings.........................................................20
Section 5. Organization.....................................................21
Section 6. Resignations and Removals of Directors...........................22
Section 7. Quorum...........................................................22
Section 8. Actions of the Board by Written Consent..........................23
Section 9. Meetings by Means of Conference Telephone........................23
Section 10. Committees.......................................................23
Section 11. Compensation.....................................................25
Section 12. Interested Directors.............................................25
Section 13. Chairman of the Board............................................25
ARTICLE IV
OFFICERS
Section 1. General..........................................................27
Section 2. Election.........................................................27
Section 3. Voting Securities Owned by the Corporation.......................28
Section 4. President........................................................29
Section 5. Vice Presidents..................................................29
Section 6. Chief Financial Officer..........................................30
Section 7. Secretary........................................................31
Section 8. Assistant Secretaries............................................32
Section 9. Other Officers...................................................32
ARTICLE V
STOCK
Section 1. Form of Certificates.............................................33
Section 2. Signatures.......................................................33
Section 3. Lost Certificates................................................34
Section 4. Transfers........................................................34
Section 5. Dividend Record Date.............................................35
Section 6. Record Owners....................................................35
Section 7. Transfer and Registry Agents.....................................36
ARTICLE VI
NOTICES
Section 1. Notices..........................................................36
Section 2. Waivers of Notice................................................37
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends........................................................37
Section 2. Disbursements....................................................38
Section 3. Fiscal Year......................................................38
Section 4. Corporate Seal...................................................39
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other
than Those by or in the Right of the Corporation.................39
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation.....................................40
Section 3. Authorization of Indemnification.................................41
Section 4. Good Faith Defined...............................................42
Section 5. Indemnification by a Court.......................................43
Section 6. Expenses Payable in Advance......................................44
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses....44
Section 8. Insurance........................................................45
Section 9. Certain Definitions..............................................46
Section 10. Survival of Indemnification and Advancement of Expenses..........47
Section 11. Limitation on Indemnification....................................47
Section 12. Indemnification of Employees and Agents..........................47
ARTICLE IX
AMENDMENTS
Section 1. Amendments.......................................................47
Section 2. Entire Board of Directors........................................47
BY-LAWS
OF
E-Z-EM, INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for
the election of directors or for any other purpose shall be held at such time
and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors.
Section 2. Annual Meetings. The Annual Meeting of Stockholders
for the election of directors shall be held on such date and at such time as
shall be designated from time to time by the Board of Directors. Any other
proper business may be transacted at the Annual Meeting of Stockholders.
Section 3. Special Meetings. Unless otherwise required by law
or by the certificate of incorporation of the Corporation, as amended and
restated from time to time (the "Certificate of Incorporation"), Special
Meetings of Stockholders, for any purpose or purposes, may be called by either
(i) the Chairman, if there be one, or (ii) the President, (iii) any Vice
President, if there be one, (iv) the Secretary or (v) any Assistant Secretary,
if there be one, and shall be called by any such officer at the request in
writing of (i) the Board of Directors or (ii) a committee of the Board of
Directors that has been duly designated by the Board of Directors and whose
powers and authority include the power to call such meetings. Such request
shall state the purpose or purposes of the proposed meeting. At a Special
Meeting of Stockholders, only such business shall be conducted as shall be
specified in the notice of meeting (or any supplement thereto).
Section 4. Nature of Business at Meetings of Stockholders. No
business may be transacted at an Annual Meeting of Stockholders, other than
business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
any duly authorized committee thereof), (b) otherwise properly brought before
the Annual Meeting by or at the direction of the Board of Directors (or any
duly authorized committee thereof), or (c) otherwise properly brought before
the Annual Meeting by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for in
Section 6 of this Article II and on the record date for the determination of
stockholders entitled to notice of and to vote at such Annual Meeting and (ii)
who complies with the notice procedures set forth in this Section 4. In
addition to any other applicable requirements, for business to be properly
brought before an Annual Meeting by a stockholder, such stockholder must have
given timely notice thereof in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than ninety (90) days nor more than one hundred twenty
(120) days prior to the anniversary date of the immediately preceding Annual
Meeting of Stockholders; provided, however, that in the event that the Annual
Meeting is called for a date that is not within twenty-five (25) days before
or after such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the Annual
Meeting was mailed or such public disclosure of the date of the Annual Meeting
was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
Annual Meeting (i) a brief description of the business desired to be brought
before the Annual Meeting and the reasons for conducting such business at the
Annual Meeting, (ii) the name and record address of such stockholder, (iii)
the class or series and number of shares of capital stock of the Corporation
which are owned beneficially or of record by such stockholder, (iv) a
description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of
such stockholder in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at the Annual Meeting to
bring such business before the meeting.
No business shall be conducted at the Annual Meeting of Stockholders
except business brought before the Annual Meeting in accordance with the
procedures set forth in this Section 4; provided, however, that, once business
has been properly brought before the Annual Meeting in accordance with such
procedures, nothing in this Section 4 shall be deemed to preclude discussion
by any stockholder of any such business. If the chairman of an Annual Meeting
determines that business was not properly brought before the Annual Meeting in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
Section 5. Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors of the Corporation, except as may be otherwise provided
in the Certificate of Incorporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election to the
Board of Directors may be made at any Annual Meeting of Stockholders, or at
any Special Meeting of Stockholders called for the purpose of electing
directors, (a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (b) by any stockholder of the Corporation (i)
who is a stockholder of record on the date of the giving of the notice
provided for in Section 6 of this Article II and on the record date for the
determination of stockholders entitled to notice of and to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 5.
In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation (a) in the case of an Annual Meeting, not less than ninety (90)
days nor more than one hundred twenty (120) days prior to the anniversary date
of the immediately preceding Annual Meeting of Stockholders; provided,
however, that in the event that the Annual Meeting is called for a date that
is not within twenty-five (25) days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the day on which
such notice of the date of the Annual Meeting was mailed or such public
disclosure of the date of the Annual Meeting was made, whichever first occurs;
and (b) in the case of a Special Meeting of Stockholders called for the
purpose of electing directors, not later than the close of business on the
tenth (10th) day following the day on which notice of the date of the Special
Meeting was mailed or public disclosure of the date of the Special Meeting was
made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth (a) as to each person whom the stockholder proposes to nominate
for election as a director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be made by
such stockholder, (iv) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the persons named in
its notice and (v) any other information relating to such stockholder that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election
of directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 5. If the Chairman of the meeting determines that a nomination
was not made in accordance with the foregoing procedures, the Chairman shall
declare to the meeting that the nomination was defective and such defective
nomination shall be disregarded.
Section 6. Notice. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting, and,
in the case of a Special Meeting, the purpose or purposes for which the
meeting is called. Unless otherwise required by law, written notice of any
meeting shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting to each stockholder entitled to notice of and
to vote at such meeting.
Section 7. Adjournments. Any meeting of the stockholders may
be adjourned from time to time to reconvene at the same or some other place,
and notice need not be given of any such 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 transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting in accordance
with the requirements of Section 6 of this Article II shall be given to each
stockholder of record entitled to notice of and to vote at the meeting.
Section 8. Quorum. Unless otherwise required by applicable law
or the Certificate of Incorporation, the holders of a majority of the
Corporation's capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction of business. A quorum,
once established, shall not be broken by the withdrawal of enough votes to
leave less than a quorum. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, in the manner provided in Section 7 of
this Article II, until a quorum shall be present or represented.
Section 9. Voting. Unless otherwise required by law, the Certificate
of Incorporation or these By-Laws, any question brought before any meeting of
the stockholders, other than the election of directors, shall be decided by
the vote of the holders of a majority of the total number of votes of the
Corporation's capital stock present in person or represented by proxy and
entitled to vote thereat, voting as a single class. Unless otherwise provided
in the Certificate of Incorporation, and subject to Section 12 of this Article
II, each stockholder present in person or represented by proxy at a meeting of
the stockholders shall be entitled to cast one (1) vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes
may be cast in person or by proxy as provided in Section 10 of this Article
II. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of the stockholders, in such officer's
discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
Section 10. Consent of Stockholder in Lieu of Meeting. (a) Unless
otherwise provided in the Certificate of Incorporation, any action required or
permitted to be taken at any Annual or Special Meeting of Stockholders of the
Corporation may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business,
or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of the stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. Every written consent shall bear the date of
signature of each stockholder who signs the consent and no written consent
shall be effective to take the corporate action referred to therein unless,
within sixty (60) days of the earliest dated consent delivered in the manner
required by this Section 10 to the Corporation, written consents signed by a
sufficient number of holders to take action are delivered to the Corporation
by delivery to its registered office in the State of Delaware, its principal
place of business, or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of the stockholders are recorded.
Any copy, facsimile or other reliable reproduction of a consent in writing may
be substituted or used in lieu of the original writing for any and all
purposes for which the original writing could be used, provided that such
copy, facsimile or other reproduction shall be a complete reproduction of the
entire original writing. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing and who, if the action
had been taken at a meeting, would have been entitled to notice of the meeting
if the record date for such meeting had been the date that written consents
signed by a sufficient number of holders to take the action were delivered to
the Corporation as provided above in this Section 10.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, 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 date shall not be more than ten (10) days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice
to the Secretary of the Corporation, request the Board of Directors to fix a
record date. The Board of Directors shall promptly, but in all events within
ten (10) days after the date on which such a request is received, adopt a
resolution fixing the record date. If no record date has been fixed by the
Board of Directors within ten (10) days of the date on which such a request is
received, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by applicable law, 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 the State of Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of the stockholders are recorded, to the attention of the Secretary
of the Corporation. 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 of Directors and prior action by the
Board of Directors is required by applicable law, 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 date on which the
Board of Directors adopts the resolution taking such prior action.
Section 11. Proxies. Each stockholder entitled to vote at a
meeting of the stockholders or to express consent or dissent to corporate
action in writing without a meeting may authorize another person or persons to
act for such stockholder as proxy, but no such proxy shall be voted upon after
three years from its date, unless such proxy provides for a longer period.
Without limiting the manner in which a stockholder may authorize another
person or persons to act for such stockholder as proxy, the following shall
constitute a valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another person or
persons to act for such stockholder as proxy. Execution may be
accomplished by the stockholder or such stockholder's authorized officer,
director, employee or agent signing such writing or causing such person's
signature to be affixed to such writing by any reasonable means,
including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to act for
such stockholder as proxy by transmitting or authorizing the transmission
of a telegram or cablegram to the person who will be the holder of the
proxy or to a proxy solicitation firm, proxy support service organization
or like agent duly authorized by the person who will be the holder of the
proxy to receive such telegram or cablegram, provided that any such
telegram or cablegram must either set forth or be submitted with
information from which it can be determined that the telegram or
cablegram was authorized by the stockholder. If it is determined that
such telegrams or cablegrams are valid, the inspectors or, if there are
no inspectors, such other persons making that determination shall specify
the information on which they relied.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing, telegram or cablegram authorizing another person or persons to act as
proxy for a stockholder may be substituted or used in lieu of the original
writing, telegram or cablegram for any and all purposes for which the original
writing, telegram or cablegram could be used; provided, however, that such
copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing, telegram or cablegram.
Section 12. List of Stockholders Entitled to Vote. The officer
of the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten (10) days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting (i) 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 or (ii) during ordinary business hours, at the
principal place of business of the Corporation. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 13. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
the 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 sixty (60) nor less than ten (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 the 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 the stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 14. Stock Ledger. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by Section 12 of this Article II or the
books of the Corporation, or to vote in person or by proxy at any meeting of
the stockholders.
Section 15. Conduct of Meetings. The Board of Directors of the
Corporation may adopt by resolution such rules and regulations for the conduct
of any meeting of the stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of the stockholders shall have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of such chairman, are appropriate for the
proper conduct of the meeting. Such rules, regulations or procedures, whether
adopted by the Board of Directors or prescribed by the chairman of the
meeting, may include, without limitation, the following: (i) the establishment
of an agenda or order of business for the meeting; (ii) the determination of
when the polls shall open and close for any given matter to be voted on at the
meeting; (iii) rules and procedures for maintaining order at the meeting and
the safety of those present; (iv) limitations on attendance at or
participation in the meeting to stockholders of record of the Corporation,
their duly authorized and constituted proxies or such other persons as the
chairman of the meeting shall determine; (v) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (vi)
limitations on the time allotted to questions or comments by participants.
Section 16. Inspectors of Election. In advance of any meeting of the
stockholders, the Board of Directors, by resolution, the Chairman or the
President shall appoint one or more inspectors to act at the meeting and make
a written report thereof. One or more other persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of the stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Unless otherwise required by applicable law, inspectors may be
officers, employees or agents of the Corporation. Each inspector, before
entering upon the discharge of the duties of inspector, shall take and sign an
oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of such inspector's ability. The inspector shall
have the duties prescribed by law and shall take charge of the polls and, when
the vote is completed, shall make a certificate of the result of the vote
taken and of such other facts as may be required by applicable law.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of
Directors shall consist of not less than one nor more than fifteen members,
the exact number of which shall be fixed from time to time by the Board of
Directors. The directors shall be divided into three classes, designated Class
I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the
entire Board of Directors. At each Annual Meeting of Stockholders, successors
to the class of directors whose term expires at that Annual Meeting shall be
elected for a three-year term and until their successors are duly elected and
qualified. If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible. In no case will a
decrease in the number of directors have the effect of removing or shortening
the term of any incumbent director. Except as provided in Section 2 of this
Article III, directors shall be elected by a plurality of the votes cast at
each Annual Meeting of Stockholders and each director so elected shall hold
office until the next Annual Meeting of Stockholders at which such director's
class stands for election and until such director's successor is duly elected
and qualified, or until such director's earlier death, resignation or removal.
Directors need not be stockholders.
Section 2. Vacancies. Unless otherwise required by law or the
Certificate of Incorporation, any vacancy on the Board of Directors that
results from an increase in the number of directors may be filled by a
majority of the Board of Directors then in office, provided that a quorum is
present, and any other vacancy occurring on the Board of Directors may be
filled by a majority of the Board of Directors then in office, even if less
than a quorum, or by a sole remaining director. Any director of any class
elected to fill a vacancy resulting from an increase in the number of
directors of such class or from the removal from office, death, disability,
resignation or disqualification of a director or other cause shall hold office
for a term that shall coincide with the remaining term of that class.
Section 3. Duties and Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
Section 4. Meetings. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
Regular meetings of the Board of Directors may be held without notice at such
time and at such place as may from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors may be called by the
Chairman, if there be one, the President, or by the Chairman at the request of
a majority of the Board of Directors. Notice thereof stating the place, date
and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone,
telegram, facsimile or electronic mail on twenty-four (24) hours' notice, or
on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Organization. At each meeting of the Board of
Directors, the Chairman of the Board of Directors, or, in his or her absence,
a director chosen by a majority of the directors present, shall act as
chairman. The Secretary of the Corporation shall act as secretary at each
meeting of the Board of Directors. In case the Secretary shall be absent from
any meeting of the Board of Directors, an Assistant Secretary shall perform
the duties of secretary at such meeting; and in the absence from any such
meeting of the Secretary and all the Assistant Secretaries, the chairman of
the meeting may appoint any person to act as secretary of the meeting.
Section 6. Resignations and Removals of Directors. Any
director of the Corporation may resign at any time, by giving notice in
writing to the Chairman of the Board of Directors, the President or the
Secretary of the Corporation. Such resignation shall take effect at the time
therein specified or, if no time is specified, immediately; and, unless
otherwise specified in such notice, the acceptance of such resignation shall
not be necessary to make it effective. Except as otherwise required by
applicable law and subject to the rights, if any, of the holders of shares of
preferred stock then outstanding, any director or the entire Board of
Directors may be removed from office at any time, but only for cause, and only
by the affirmative vote of the holders of at least a majority in voting power
of the issued and outstanding capital stock of the Corporation entitled to
vote in the election of directors.
Section 7. Quorum. Except as otherwise required by law or the
Certificate of Incorporation, at all meetings of the Board of Directors, a
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum 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 of the time and
place of the adjourned meeting, until a quorum shall be present.
Section 8. Actions of the Board by Written Consent. Unless
otherwise provided in the Certificate of Incorporation or these By-Laws, 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
the members of the Board of Directors 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 of Directors or committee.
Section 9. Meetings by Means of Conference Telephone. Unless
otherwise provided in the Certificate of Incorporation or these By-Laws,
members of the Board of Directors of the Corporation, or any committee
thereof, may participate in a meeting of the Board of Directors or such
committee by means 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 a meeting pursuant to this Section 9 shall
constitute presence in person at such meeting.
Section 10. Committees. (a) The Board of Directors may designate
one or more committees, each committee to consist of one or more of the
directors of the Corporation. 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 any such committee. In the absence or
disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any absent or
disqualified member. Any committee, to the extent permitted by law and
provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it.
Each committee shall keep regular minutes and report to the Board of Directors
when required.
(b) The Board of Directors may designate four directors, or such
other number as the Board may determine from time to time, to constitute an
Executive Committee to hold office at the pleasure of the Board, which
committee shall, during the intervals between meetings of the Board of
Directors, have and exercise the power and authority of the Board. Any member
of the Executive Committee may be removed at any time with or without cause by
a resolution of a majority of the entire Board. Any person ceasing to be a
director shall ipso facto cease to be a member of the committee. Any vacancy
in the committee occurring from any cause whatsoever may be filled from among
the directors by resolution of a majority of the entire Board.
Section 11. Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of
Directors and/or a stated fee for service as director, payable in cash or
securities. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed similar compensation for
service as committee members.
Section 12. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association or
other organization in which one or more of its directors or officers are
directors or officers or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present
at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because any
such director's or officer's vote is counted for such purpose if: (i) the
material facts as to the director's or officer's relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to the
director's or officer's relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good
faith by vote of the stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved or
ratified by the Board of Directors, a committee thereof or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
Section 13. Chairman of the Board of Directors. The Board of
Directors, in its discretion, may choose a Chairman of the Board of Directors.
The Chairman of the Board of Directors, if there be one, shall preside at all
meetings of the stockholders and of the Board of Directors and shall perform
such other duties and may exercise such powers as may from time to time be
assigned by these By-Laws or by the Board of Directors.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a Secretary and a
Chief Financial Officer. The Board of Directors, in its discretion, also may
choose one or more Vice Presidents, Assistant Secretaries and other officers.
Any number of offices may be held by the same person, unless otherwise
prohibited by law, the Certificate of Incorporation or these By-Laws. The
officers of the Corporation need not be stockholders of the Corporation nor
need such officers be directors of the Corporation.
Section 2. Election. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders (or action by written consent
of stockholders in lieu of the Annual Meeting of Stockholders), shall elect
the officers of the Corporation 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; and each officer of the
Corporation shall hold office until such officer's successor is elected and
qualified, or until such officer's earlier death, resignation or removal. Any
officer elected by the Board of Directors may be removed at any time by the
Board of Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed in
the name of and on behalf of the Corporation by the President or any Vice
President or any other officer authorized to do so by the Board of Directors
and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person
or by proxy at any meeting of security holders of any corporation in which the
Corporation may own securities and at any such meeting shall possess and may
exercise any and all rights and power incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have
exercised and possessed if present. The Board of Directors may, by resolution,
from time to time confer like powers upon any other person or persons.
Section 4. President. The President shall, subject to the
control of the Board of Directors have general supervision of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall execute all bonds,
mortgages, contracts and other instruments of the Corporation requiring a
seal, under the seal of the Corporation, except where required or permitted by
law to be otherwise signed and executed and except that the other officers of
the Corporation may sign and execute documents when so authorized by these
By-Laws, the Board of Directors or the President. In the absence or disability
of the Chairman of the Board of Directors, or if there be none, the President
shall preside at all meetings of the stockholders and, provided the President
is also a director, the Board of Directors. Unless the Board of Directors
shall otherwise designate, the President shall be the Chief Executive Officer
of the Corporation. The President shall also perform such other duties and may
exercise such other powers as may from time to time be assigned to such
officer by these By-Laws or by the Board of Directors.
Section 5. Vice Presidents. At the request of the President or
in the President's absence or in the event of the President's inability or
refusal to act, the Vice President, or the Vice Presidents if there are more
than one (in the order designated by the Board of Directors), shall perform
the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President. Each Vice President
shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there be no Vice President, the
Board of Directors shall designate the officer of the Corporation who, in the
absence of the President or in the event of the inability or refusal of the
President to act, shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 6. Chief Financial Officer. The Chief Financial
Officer shall have such powers as delegated to it by the Board of Directors,
including but not limited to the ability to act as Treasurer. The Chief
Financial Officer shall have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Chief
Financial Officer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors,
at its regular meetings, or when the Board of Directors so requires, an
account of all transactions as Chief Financial Officer and of the financial
condition of the Corporation. If required by the Board of Directors, the Chief
Financial Officer shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of the office of the Chief Financial
Officer and for the restoration to the Corporation, in case of the Chief
Financial Officer's death, resignation, retirement or removal from office, of
all books, papers, vouchers, money and other property of whatever kind in the
Chief Financial Officer's possession or under the Chief Financial Officer's
control belonging to the Corporation.
Section 7. Secretary. The Secretary shall attend all meetings
of the Board of Directors and all meetings of the stockholders and record all
the proceedings thereat in a book or books to be kept for that purpose. The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors, the Chairman
of the Board of Directors or the President, under whose supervision the
Secretary shall be. If the Secretary shall be unable or shall refuse to cause
to be given notice of all meetings of the stockholders and special meetings of
the Board of Directors, and if there be no Assistant Secretary, then either
the Board of Directors or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there be one,
shall have authority to affix the same to any instrument requiring it and when
so affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation
and to attest to the affixing by such officer's signature. The Secretary shall
see that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the
case may be.
Section 8. Assistant Secretaries. Assistant Secretaries, if
there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the President, any
Vice President, if there be one, or the Secretary, and in the absence of the
Secretary or in the event of the Secretary's inability or refusal to act,
shall perform the duties of the Secretary, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Secretary.
Section 9. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name
of the Corporation (i) by the Chairman of the Board of Directors, or the
President or a Vice President and (ii) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by such stockholder in the Corporation.
Section 2. Signatures. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with
the same effect as if such person were such officer, transfer agent or
registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may
direct a new certificate to be issued in place of any certificate theretofore
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, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or such owner's legal representative, to advertise the
same in such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation on account of the alleged loss, theft
or destruction of such certificate or the issuance of such new certificate.
Section 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by applicable law and in these By-Laws.
Transfers of stock shall be made on the books of the Corporation only by the
person named in the certificate or by such person's attorney lawfully
constituted in writing and upon the surrender of the certificate therefor,
properly endorsed for transfer and payment of all necessary transfer taxes;
provided, however, that such surrender and endorsement or payment of taxes
shall not be required in any case in which the officers of the Corporation
shall determine to waive such requirement. Every certificate exchanged,
returned or surrendered to the Corporation shall be marked "Cancelled," with
the date of cancellation, by the Secretary or Assistant Secretary of the
Corporation or the transfer agent thereof. No transfer of stock shall be valid
as against the Corporation for any purpose until it shall have been entered in
the stock records of the Corporation by an entry showing from and to whom
transferred.
Section 5. Dividend Record Date. 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 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 date shall be
not more than sixty (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.
Section 6. Record Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise
required by law.
Section 7. Transfer and Registry Agents. The Corporation may
from time to time maintain one or more transfer offices or agencies and
registry offices or agencies at such place or places as may be determined from
time to time by the Board of Directors.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by
law, the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee or stockholder, at
such person's address as it appears on the records of the Corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Written
notice may also be given personally or by telegram, telex or cable and, in the
case of notice to a director, by facsimile or electronic mail.
Section 2. Waivers of Notice. Whenever any notice is required
by applicable law, the Certificate of Incorporation or these By-Laws, to be
given to any director, member of a committee or stockholder, a waiver thereof
in writing, signed by the person or persons entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent thereto.
Attendance of a person at a meeting, present in person or represented by
proxy, shall constitute a waiver of notice of such meeting, except where the
person attends the meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any Annual or Special Meeting of
Stockholders or any regular or special meeting of the directors or members of
a committee of directors need be specified in any written waiver of notice
unless so required by law, the Certificate of Incorporation or these By-Laws.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the requirements of the General Corporation Law of the
State of Delaware (the "DGCL") and the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors at any
regular or special meeting of the Board of Directors (or any action by written
consent in lieu thereof in accordance with Section 8 of Article III hereof),
and may be paid in cash, in property, or in shares of the Corporation's
capital stock. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
Board of Directors from time to time, in its absolute discretion, deems proper
as a reserve or reserves to meet contingencies, or for purchasing any of the
shares of capital stock, warrants, rights, options, bonds, debentures, notes,
scrip or other securities or evidences of indebtedness of the Corporation, or
for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors may modify
or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 3. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization
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.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other
than Those by or in the Right of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, 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 such person is or was a director, director emeritus or
officer of the Corporation, or is or was a director, director emeritus or
officer of the Corporation 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 such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person 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 such person's 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 such person 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 such person's conduct was
unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or
in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the Corporation to procure a judgment in its favor by reason of
the fact that such person is or was a director, director emeritus or officer of
the Corporation, or is or was a director, director emeritus or officer of the
Corporation serving at the request of the Corporation as a director, director
emeritus, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation; 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 of the State of Delaware 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.
Section 3. Authorization of Indemnification. Any indemnification under
this Article VIII (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 present or former director, director emeritus or officer
is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII,
as the case may be. Such determination shall be made, with respect to a person
who is a director, director emeritus or officer at the time of such
determination, (i) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (ii) by a
committee of such directors designated by a majority vote of such directors,
even though less than a quorum, or (iii) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion or
(iv) by the stockholders. Such determination shall be made, with respect to
former directors, directors emeritus and officers, by any person or persons
having the authority to act on the matter on behalf of the Corporation. To the
extent, however, that a present or former director, director emeritus or
officer of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith, without the necessity of authorization in the
specific case.
Section 4. Good Faith Defined. For purposes of any
determination under Section 3 of this Article VIII, a person shall be deemed
to have acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause
to believe such person's conduct was unlawful, if such person's action is
based on the records or books of account of the Corporation or another
enterprise, or on information supplied to such person by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The provisions of this Section 4 shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director,
director emeritus or officer may apply to the Court of Chancery of the State of
Delaware or any other court of competent jurisdiction in the State of Delaware
for indemnification to the extent otherwise permissible under Section 1 or
Section 2 of this Article VIII. The basis of such indemnification by a court
shall be a determination by such court that indemnification of the director,
director emeritus or officer is proper in the circumstances because such person
has met the applicable standard of conduct set forth in Section 1 or Section 2
of this Article VIII, as the case may be. Neither a contrary determination in
the specific case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application or create a
presumption that the director, director emeritus or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 shall be given to
the Corporation promptly upon the filing of such application. If successful, in
whole or in part, the director, director emeritus or officer seeking
indemnification shall also be entitled to be paid the expense of prosecuting
such application.
Section 6. Expenses Payable in Advance. Expenses (including attorneys'
fees) incurred by a director, director emeritus or officer 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, director emeritus or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the Corporation as authorized in this Article VIII. Such expenses (including
attorneys' fees) incurred by former directors, directors emeritus and officers
or other employees and agents may be so paid upon such terms and conditions, if
any, as the Corporation deems appropriate.
Section 7. Nonexclusivity of Indemnification and Advancement
of Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII 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, these By-Laws,
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in such person's official capacity and as to action in another
capacity while holding such office, it being the policy of the Corporation
that indemnification of the persons specified in Section 1 and Section 2 of
this Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1 or Section 2
of this Article VIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the DGCL, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, director emeritus
or officer of the Corporation, or is or was a director, director emeritus or
officer of the Corporation 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 such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the power or
the obligation to indemnify such person against such liability under the
provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article VIII,
references to "the Corporation" shall include, in addition to the resulting
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, directors emeritus or officers, so that any person who is or was a
director, director emeritus or officer of such constituent corporation, or is
or was a director, director emeritus or officer of such constituent corporation
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 VIII with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued. The term "another enterprise" as used in this Article
VIII shall mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was
serving at the request of the Corporation as a director, officer, employee or
agent. For purposes of this Article VIII, 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, director emeritus, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
director emeritus or officer with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner such person 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 VIII.
Section 10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section 5 of this
Article VIII), the Corporation shall not be obligated to indemnify any
director, director emeritus or officer (or his or her heirs, executors or
personal or legal representatives) or advance expenses in connection with a
proceeding (or part thereof) initiated by such person unless such proceeding
(or part thereof) was authorized or consented to by the Board of Directors of
the Corporation.
Section 12. Indemnification of Employees and Agents. The Corporation
may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those conferred in this
Article VIII to directors, directors emeritus and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. These By-Laws may be altered, amended
or repealed, in whole or in part, or new By-Laws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of
such alteration, amendment, repeal or adoption of new By-Laws be contained in
the notice of such meeting of the stockholders or Board of Directors, as the
case may be. All such amendments must be approved by either the holders of at
least a majority of the outstanding capital stock entitled to vote thereon or
by a majority of the entire Board of Directors then in office.
Section 2. Entire Board of Directors. As used in this Article
IX and in these By-Laws generally, the term "entire Board of Directors" means
the total number of directors which the Corporation would have if there were
no vacancies.
* * *
Adopted as of:
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Last Amended as of:
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