EXHIBIT 3.2
Amended and Restated
B Y L A W S
OF
CEPHALON, INC.
(a Delaware Corporation)
. . .oo0oo. . .
ARTICLE I
Office and Fiscal Year
SECTION 1.01. Registered Office. -- The registered office of the
corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware until otherwise established by resolution of the board of directors,
and a certificate certifying the change is filed in the manner provided by
statute.
SECTION 1.02. Other Offices. -- The corporation may also have offices
at such other places within or without the State of Delaware as the board of
directors may from time to time determine or the business of the corporation
requires.
SECTION 1.03. Fiscal Year. -- The fiscal year of the corporation shall
end on the 31st of December in each year.
ARTICLE II
Meetings of Stockholders
SECTION 2.01. Place of Meeting. -- All meetings of the stockholders of
the corporation shall be held at the registered office of the corporation, or at
such other place within or without the State of Delaware as shall be designated
by the board of directors in the notice of such meeting.
SECTION 2.02. Annual Meeting. -- If required by applicable law, the
board of directors shall fix the date and time of the annual meeting of the
stockholders of the corporation and at said meeting the stockholders then
entitled to vote shall elect directors and shall transact such other business as
may properly be brought before the meeting.
SECTION 2.03. Special Meetings. - Subject to the provisions of the
certificate of incorporation and the provisions of these bylaws, special
meetings of the
stockholders of the corporation may be called at any time only by the chairman
of the board, a majority of the board of directors or the president. At any
time, upon the written request of any person or persons who have duly called a
special meeting in accordance herewith, which written request shall state the
purpose or purposes of the meeting, it shall be the duty of the secretary to fix
the date of the meeting which shall be held at such date and time as the
secretary may fix, not less than ten nor more than 60 days after the receipt of
the request, and to give due notice thereof. If the secretary shall neglect or
refuse to fix the time and date of such meeting and give notice thereof, the
person or persons calling the meeting may do so.
SECTION 2.04. Notice of Meetings. -- Notice of the place, date and hour
of every meeting of the stockholders, whether annual or special, shall be given
to each stockholder of record entitled to vote at the meeting not less than ten
nor more than 60 days before the date of the meeting unless otherwise required
by law, the certificate of incorporation or these bylaws. Every notice of a
special meeting shall state the purpose or purposes thereof. If the notice is
sent by mail, it shall be deemed to have been given when deposited in the United
States mail, postage prepaid, directed to the stockholder at the address of the
stockholder as it appears on the records of the corporation.
SECTION 2.05. Quorum, Manner of Acting and Adjournment.
(a) Quorum. -- The holders of a majority of the voting power of the
outstanding shares of capital stock of the corporation entitled to vote
generally in the election of directors, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders except as
otherwise provided by the General Corporation Law of the State of Delaware
("DGCL"), by the certificate of incorporation or by these bylaws. Any meeting of
stockholders, annual or special, may be adjourned from time to time by the
Chairman of the meeting, without notice other than announcement at the meeting,
until a quorum is present or represented. At any such adjourned meeting at which
a quorum is present or represented, the corporation may transact any business
which 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.
(b) Manner of Acting. -- 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 on the election of directors. In all matters other than the
election of directors, the affirmative vote of the holders of a majority of the
voting power of the outstanding shares of capital stock of the corporation
present in person or represented by proxy at the meeting and entitled to vote
thereon shall be the act of the stockholders, unless the question is one upon
which, by express provision of the applicable statute, the rules or regulations
of any stock exchange applicable to the corporation, applicable law, pursuant to
any regulation applicable to the corporation or its securities, the certificate
of incorporation or these bylaws, a different vote is required in which case
such express
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provision shall govern and control the decision of the question. The
stockholders present in person or by proxy at a duly organized meeting can
continue to do business until adjournment, notwithstanding withdrawal of enough
stockholders to leave less than a quorum.
SECTION 2.06. Organization. -- At every meeting of the stockholders,
the chairman of the board, if there be one, or in the case of a vacancy in the
office or absence of the chairman of the board, one of the following persons
present in the order stated: the vice chairman, if one has been appointed, the
president, the vice presidents in their order of rank or seniority, a chairman
designated by the board of directors or a chairman chosen by the stockholders
entitled to cast a majority of the votes which all stockholders present in
person or by proxy are entitled to cast, shall act as chairman, and the
secretary, or, in the absence of the secretary, an assistant secretary, or in
the absence of the secretary and the assistant secretaries, a person appointed
by the chairman, shall act as secretary.
SECTION 2.07. Voting.
(a) General Rule. -- Unless otherwise provided in the certificate of
incorporation, each stockholder shall be entitled to one vote, in person or by
proxy, for each share of capital stock having voting power held by such
stockholder.
(b) Voting and Other Action by Proxy. --
(1) A stockholder may execute a writing authorizing another person
or persons to act for the stockholder as proxy. Such execution may be
accomplished by the stockholder or the authorized officer, director, employee or
agent of the stockholder signing such writing or causing his or her signature to
be affixed to such writing by any reasonable means including, but not limited
to, by facsimile signature. A stockholder may authorize another person or
persons to act for the stockholder as proxy by transmitting or authorizing the
transmission of a telegram, cablegram, or other means of electronic transmission
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 transmission if such
telegram, cablegram or other means of electronic transmission sets forth or is
submitted with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the stockholder.
(2) No proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period.
(3) A duly executed proxy shall be irrevocable if it states that
it is irrevocable and if, and only so long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the corporation generally.
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SECTION 2.08. Consents to Corporate Action.
(a) Record Date. The record date for determining stockholders entitled
to express consent to corporate action in writing without a meeting shall be as
fixed by the board of directors or as otherwise established under this Section
2.08. Any person seeking to have the stockholders of the corporation authorize
or take corporate action by written consent without a meeting shall, by written
notice addressed to the secretary and delivered to the corporation, request that
a record date be fixed for such purpose. The board of directors may fix a record
date for such purpose which shall be no more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the board of
directors and shall not precede the date such resolution is adopted. If the
board of directors fails within ten (10) days after the corporation receives
such notice to fix a record date for such purpose, the record date shall be the
day on which the first written consent is delivered to the corporation in the
manner described in Section 2.08(b) below unless prior action by the board of
directors is required under the DGCL, in which event the record date shall be at
the close of business on the day on which the board of directors adopts the
resolution taking such prior action.
(b) Procedures.
(i) Every written consent purporting to take or authorizing the
taking of corporate action and/or related revocations (each such written consent
and related revocation is referred to in this Section 2.08 as a "Consent") shall
bear the date of signature of each stockholder who signs the Consent, and no
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 2.08(b), Consents signed by a sufficient number
of stockholders to take such action are so delivered to the corporation. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous Consent shall be given to those stockholders who have not consented in
writing.
(ii) A Consent 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 stockholders of the corporation are
recorded. Delivery to the corporation's registered office shall be made by hand
or by certified or registered mail, return receipt requested.
(iii) Consents shall be valid for a maximum of sixty (60) days
after the date of the earliest dated consent delivered to the corporation in the
manner provided in Section 228(c) of the DGCL. Prior to the delivery of consents
signed by a sufficient number of holders to take corporate action, consents may
be revoked by written notice (a) to the corporation, (b) to the stockholder or
stockholders soliciting consents or soliciting revocations in opposition to
action by consent (the "Soliciting Stockholders"), or (c) to a proxy solicitor
or other agent designated by the corporation or the Soliciting Stockholders, as
applicable.
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(iv) Within ten (10) business days after receipt of the earliest dated
Consent delivered to the corporation in the manner provided in Section 228(c) of
the DGCL or the determination by the board of directors of the corporation that
the corporation should seek corporate action by written consent, as the case may
be, the secretary of the corporation shall engage nationally recognized
independent inspectors of election for the purpose of performing a ministerial
review of the validity of the Consents and revocations. The cost of retaining
inspectors of election shall be borne by the corporation. For the purpose of
permitting the inspectors to perform such review, no action by written consent
without a meeting shall be effective until such date as the independent
inspectors certify to the corporation that the consents delivered to the
corporation in accordance with this Section 2.08 represent at least the minimum
number of votes that would be necessary to take the corporate action. Nothing
contained in this Section 2.08(b)(iv) shall in any way be construed to suggest
or imply that the board of directors or any stockholder shall not be entitled to
contest the validity of any Consent or revocation thereof, whether before or
after such certification by the independent inspectors, or to take any other
action (including, without limitation, the commencement, prosecution or defense
of any litigation with respect thereto, and the seeking of injunctive relief in
such litigation).
(v) Following appointment of the inspectors, Consents and revocations
shall be delivered to the inspectors upon receipt by the corporation, the
Soliciting Stockholder or their proxy solicitors or other designated agents. As
soon as practicable following the earlier of (a) the receipt by the inspectors,
a copy of which shall be delivered to the corporation, of any written demand by
the Soliciting Stockholders of the corporation, or (b) sixty (60) days after the
date of the earliest dated Consent delivered to the corporation in the manner
provided in Section 228(c) of the DGCL, the inspectors shall issue a preliminary
report to the corporation and the Soliciting Stockholders stating the number of
valid and unrevoked Consents received and whether, based on the preliminary
count, the requisite number of valid and unrevoked Consents has been obtained to
authorize or take the action specified in the Consents.
(vi) Unless the corporation and the Soliciting Stockholders shall agree
to a shorter or longer period, the corporation and the Soliciting Stockholders
shall have forty-eight (48) hours to review the Consents and revocations and to
advise the inspectors and the opposing party in writing as to whether they
intend to challenge the preliminary report of the inspectors. If no written
notice of an intention to challenge the preliminary report is received within
forty-eight (48) hours after the inspectors' issuance of the preliminary report,
the inspectors shall issue to the corporation and the Soliciting Stockholders
their final report containing the information from the inspectors' determination
with respect to whether the requisite number of valid and unrevoked Consents was
obtained to authorize and take the action specified in the Consents. If the
corporation or the Soliciting Stockholders issue written notice of an intention
to challenge the inspectors' preliminary report within forty-eight (48) hours
after the issuance of that report, a challenge session shall be scheduled by the
inspectors as promptly as practicable. Following completion of the challenge
session, the inspectors shall as promptly as practicable issue their final
report to the Soliciting Stockholders and the corporation,
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which report shall contain the information included in the preliminary report,
plus any change in the vote total as a result of the challenge and a
certification of whether the requisite number of valid and unrevoked Consents
was obtained to authorize or take the action specified in the Consents.
SECTION 2.09. Voting Lists. -- The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting. The list shall be 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, as required by applicable law.
SECTION 2.10. Notice of Stockholder Business and Nominations.
(a) Annual Meeting of Stockholders.
(1) Nominations of persons for election to the board of directors
of the corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders only (a) pursuant
to the corporation's notice of meeting (or any supplement thereto), (b) by or at
the direction of the board of directors or the chairman of the board or (c) by
any stockholder of the corporation who was a stockholder of the corporation of
record at the time the notice provided for in this Section 2.10 is delivered to
the secretary of the corporation, who is entitled to vote at the meeting and
complies with the notice procedures set forth in this Section 2.10.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(a)(1) of this Section 2.10, the stockholder must have given timely notice
thereof in writing to the secretary of the corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the secretary of the corporation at
the principal executive offices of the corporation not later than the close of
business on the ninetieth day nor earlier than the close of business on the one
hundred and twentieth day prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date of the annual
meeting is more than thirty (30) days before or more than seventy (70) days
after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the one hundred and
twentieth day prior to such annual meeting and not later than the close of
business on the later of the ninetieth day prior to such annual meeting or the
tenth day following the day on which public announcement of the date of such
meeting is first made by the corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. Such stockholder's
notice shall set forth: (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director all information relating to
such person that is required to be disclosed in solicitations of
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proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (and such person's written consent
to being named in the proxy statement as a nominee and to serving as a director
if elected); (b) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the text of the proposal or business (including the text of
any resolutions proposed for consideration and in the event that such business
includes a proposal to amend the by-laws of the corporation, the language of the
proposed amendment), the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such stockholder,
as they appear on the corporation's books, and of such beneficial owner, (ii)
the class and number of shares of the corporation which are owned beneficially
and of record by such stockholder and such beneficial owner, (iii) a
representation that the stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to propose such business or nomination, and (iv) a
representation whether the proponent or the beneficial owner, if any, intends or
is part of a group which intends to solicit proxies from other stockholders in
support of such proposal or nomination. The foregoing notice requirements shall
be deemed satisfied by a stockholder if the stockholder has notified the
corporation of his or her intention to present a proposal at an annual meeting
in compliance with Rule 14a-8 (or any successor thereof) promulgated under the
Exchange Act and such stockholder's proposal has been included in a proxy
statement that has been prepared by the corporation to solicit proxies for such
annual meeting. The corporation may require any proposed nominee to furnish such
other information as it may reasonably require to determine the eligibility of
such proposed nominee to serve as a director of the corporation.
(3) Notwithstanding anything in the second sentence of paragraph (a)(2)
of this Section 2.10 to the contrary, in the event that the number of directors
to be elected to the board of directors of the corporation is increased and
there is no public announcement by the corporation naming all of the nominees
for director or specifying the size of the increased board of directors at least
one hundred (100) days prior to the first anniversary of the preceding year's
annual meeting, a stockholder's notice required by this by-law shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the secretary of the
corporation at the principal executive offices of the corporation not later than
the close of business on the tenth day following the day on which such public
announcement is first made by the corporation.
(b) Special Meetings of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the corporation's notice of meeting. Nominations of persons
for election to the board of directors may be made at a special meeting of
stockholders at which
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directors are to be elected pursuant to the corporation's notice of meeting (a)
by or at the direction of the board of directors or (b) provided that the board
of directors has determined that directors shall be elected at such meeting, by
any stockholder of the corporation who is a stockholder of record at the time
the notice provided for in this Section 2.10 is delivered to the secretary of
the corporation, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this by-law. In the event the
corporation calls a special meeting of stockholders for the purpose of electing
one or more directors to the board of directors, any such stockholder may
nominate a person or persons (as the case may be) for election to such
position(s) as specified in the corporation's notice of meeting, if the
stockholder's notice required by paragraph (a)(2) of this Section 2.10 shall be
delivered to the secretary at the principal executive offices of the corporation
not earlier than the close of business on the one hundred twentieth day prior to
such special meeting and not later than he close of business on the later of the
ninetieth day prior to such special meeting, or the tenth day following the day
on which public announcement is first made of the date of the special meeting
and of the nominees proposed by the board of directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
(c) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.10 shall be eligible to be elected at an
annual or special meeting of stockholders of the corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 2.10. Except as otherwise provided by law, the
certificate of incorporation or these bylaws, the chairman of the meeting shall
have the power and duty to (i) determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 2.10 (including
whether the stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made solicited (or is part of a group which solicited)
or did not so solicit, as the case may be, proxies in support of such
stockholder's nominee or proposal in compliance with such stockholder's
representation as required by clause (a)(2)(c)(iv) of this Section 2.10)and (ii)
if any proposed nomination or business is not in compliance with this Section
2.10, to declare that such defective nomination shall be disregarded or that
such proposed business shall not be transacted. Notwithstanding the foregoing
provisions of this Section 2.10, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special
meeting of stockholders of the corporation to present a nomination or business,
such nomination shall be disregarded and such proposed business shall not be
transacted, notwithstanding that proxies in respect of such vote may have been
received by the corporation.
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(2) For purposes of this Section 2.10, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 2.10, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.10. Nothing in this Section 2.10 shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the
corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors pursuant
to any applicable provisions of the certificate of incorporation.
SECTION 2.11. Inspectors of Election.
(a) Appointment. -- All elections of directors shall be by written ballot,
unless otherwise provided in the certificate of incorporation; the vote upon any
other matter need not be by ballot. In advance of any meeting of stockholders
the board of directors may appoint one or more inspectors, who need not be
stockholders, to act at the meeting and to make a written report thereof. The
board of directors may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the person's best ability.
(b) Duties. -- The inspectors shall ascertain the number of shares
outstanding and the voting power of each, shall determine the shares represented
at the meeting and the validity of proxies and ballots, shall count all votes
and ballots, shall determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
shall certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors.
(c) Polls. -- The date and time of the opening and the closing of the polls
for each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(d) Reconciliation of Proxies and Ballots. -- In determining the validity
and counting of proxies and ballots, the inspectors shall be limited to an
examination of the
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proxies, any envelopes submitted with those proxies, any information transmitted
in accordance with Section 2.07, ballots and the regular books and records of
the corporation, except that the inspectors may consider other reliable
information for the limited purpose of reconciling proxies and ballots submitted
by or on behalf of banks, brokers, their nominees or similar persons which
represent more votes than the holder of a proxy is authorized by the record
owner to cast or more votes than the stockholder holds of record. If the
inspectors consider other reliable information for the limited purpose permitted
in this subsection, the inspectors at the time they make their certification
pursuant to subsection (b) shall specify the precise information considered by
them including the person or persons from whom they obtained the information,
when the information was obtained, the means by which the information was
obtained and the basis for the inspectors' belief that such information is
accurate and reliable.
ARTICLE III
Board of Directors
SECTION 3.01. Powers. -- All powers vested by law in the corporation shall
be exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of, the board of directors.
SECTION 3.02. Number of Term of Office. -- The board of directors shall
consist of such number of directors (other than directors elected by holders of
shares of preferred stock of the corporation), not less than three nor more than
seven, as may be determined from time to time by resolution of the board of
directors. Each director shall hold office until the annual meeting of the
stockholders held next after his or her election and until a successor shall
have been elected and qualified or until his or her earlier death, resignation
or removal.
SECTION 3.03. Vacancies. -- Vacancies and newly created directorships
resulting from any increase in the authorized number of directors elected by all
of the stockholders having a right to vote as a single class may be filled by a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director, and the directors so chosen shall hold office until
their successors are elected and qualified or until their earlier death,
resignation or removal. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. Subject to the
provisions of the certificate of incorporation, whenever the holders of any
class or classes of stock or series thereof are entitled to elect one or more
directors by the provisions of the certificate of incorporation, vacancies and
newly created directorships of such class or classes or series may be filled by
a majority of the directors elected by such class of classes or series thereof
then in office, or by a sole remaining director so elected. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares
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at the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
SECTION 3.04. Resignations. -- Any director may resign at any time by
giving written notice to the corporation. The resignation shall be effective
upon receipt thereof by the corporation or at such subsequent time as shall be
specified in the notice of resignation and, unless otherwise specified therein,
the acceptance of the resignation shall not be necessary to make it effective.
SECTION 3.05. Organization. -- At every meeting of the board of
directors, the chairman of the board, if there be one, or, in the case of a
vacancy in the office or absence of the chairman of the board, one of the
following officers present in the order stated: the vice chairman of the board,
if there be one, the president, the vice presidents in their order of rank and
seniority, or a chairman chosen by a majority of the directors present, shall
preside, and the secretary, or, in the absence of the secretary, an assistant
secretary, or in the absence of the secretary and the assistant secretaries, any
person appointed by the chairman of the meeting, shall act as secretary.
SECTION 3.06. Place of Meeting. -- Meetings of the board of directors
may be held at such place within or without the State of Delaware as the board
of directors may from time to time determine, or as may be designated in the
notice of the meeting.
SECTION 3.07. Regular Meetings. -- Regular meetings of the board of
directors shall be held without notice at such time and place as shall be
designated from time to time by resolution of the board of directors.
SECTION 3.08. Special Meetings. -- Special meetings of the board of
directors shall be held whenever called by the president or by two or more of
the directors. Notice of every special meeting of the board of directors shall
given to each director by telephone or facsimile or other electronic
transmission or in writing at least 24 hours (in the case of notice by telephone
or facsimile transmission or other electronic transmission) or 48 hours (in the
case of notice by courier service or express mail) or five days (in the case of
notice by first class mail) before the time at which the meeting is to be held.
Every such notice shall state the time and place of the meeting. Neither the
business to be transacted at, nor the purpose of, any meeting of the board need
be specified in a notice of the meeting.
SECTION 3.09. Quorum, Manner of Acting and Adjournment.
(a) General Rule. -- At all meetings of the board one-third of the
total number of directors shall constitute a quorum for the transaction of
business. The vote of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the board of directors, except as
may be otherwise specifically provided by the DGCL or by the certificate of
incorporation or these by-laws. If a quorum is not present at
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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 is present.
(b) Unanimous 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 any committee thereof, may be taken without a
meeting, if all members of the board or such committee, as the case may be,
consent thereto in writing in accordance with applicable law.
SECTION 3.10. Executive and Other Committees.
(a) Establishment. - The corporation shall be governed by Section
141(c)(2) of the DGCL. The board of directors may by resolution establish an
Executive Committee and one or more other committees, each committee to consist
of one or more directors. The board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee and the alternate or alternates, if any, designated for
such member, the member or members of the committee present at any meeting and
not disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another director to act at the meeting in the place of any
such absent or disqualified member.
(b) Powers. -- The Executive Committee, if established, and any such other
established committee, to the fullest extent permitted by law and to the extent
provided in the resolutions of the Board of Directors, shall have and may
exercise all the power 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 so
formed shall keep regular minutes of its meetings and report the same to the
board of directors when required.
(c) Committee Procedures. -- The term "board of directors" or "board,"
when used in any provision of these bylaws relating to the organization or
procedures of or the manner of taking action by the board of directors, shall be
construed to include and refer to the Executive Committee or other committee of
the board.
SECTION 3.11. Compensation of Directors. -- Unless otherwise restricted by
the certificate of incorporation, the board of directors shall have the
authority to fix the compensation of directors.
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ARTICLE IV
Notice - Waivers - Meetings
SECTION 4.01. Notice, What Constitutes. -- Whenever, under the provisions
of the DGCL or the certificate of incorporation or of these bylaws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail (with
messenger service specified), or courier service, charges prepaid, or by
facsimile transmission or other means of electronic transmission to the address
or fax number of the person appearing on the books of the corporation, or in the
case of directors, supplied to the corporation for the purpose of notice. If the
notice is sent by mail or courier service, it shall be deemed to be given when
deposited in the United States mail or with a courier service for delivery to
that person or, in the case of facsimile transmission, when received. If notice
is given by electronic transmission, it shall be deemed given as provided by
applicable law.
SECTION 4.02. Waivers of Notice.
(a) Written Waiver. -- Whenever notice is required to be given under any
provisions of the DGCL or the certificate of incorporation or these bylaws, a
written waiver, given by the person or persons entitled to the notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders, directors, or members of a committee of
directors need be specified in any waiver of notice of such meeting.
(b) Waiver by Attendance. -- Attendance of a person at a meeting, either
in person or by proxy, shall constitute a waiver of notice of such meeting,
except where a person attends a meeting for the express purpose of objecting at
the beginning of the meeting to the transaction of any business because the
meeting was not lawfully called or convened.
SECTION 4.03. Exception to Requirements of Notice.
(a) General Rule. -- Whenever notice is required to be given, under any
provision of the DGCL or of the certificate of incorporation or these bylaws, to
any person with whom communication is unlawful, the giving of such notice of
such person shall not be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give such notice to
such person. Any action or meeting which shall be taken or held without notice
to any such person with whom communication is unlawful shall have the same force
and effect as if such notice had been duly given.
(b) Stockholders Without Forwarding Addresses. -- Whenever notice is
required to be given, under any provision of the DGCL or the certificate of
incorporation
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or these bylaws, to any stockholder to whom (i) notice of two consecutive annual
meetings, and all notices of meetings or of the taking of action by written
consent without a meeting to such person during the period between such two
consecutive annual meetings, or (ii) all, and at least two, payments (if sent by
first class mail) of dividends or interest on securities during a 12-month
period, have been mailed addressed to such person at his or her address as shown
on the records of the corporation and have been returned undeliverable, the
giving of such notice to such person shall not be required. Any action or
meeting which shall be taken or held without notice of such person shall have
the same force and effect as if such notice had been duly given. If any such
person shall deliver to the corporation a written notice setting forth the
person's then current address, the requirement that notice be given to such
person shall be reinstated.
SECTION 4.04. Conference Telephone Meetings. -- One or more directors may
participate in a meeting of the board, or of a committee of the board, by means
of conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this section shall constitute presence in person at such
meeting.
ARTICLE V
Officers
SECTION 5.01. Number, Qualifications and Designation. -- The officers of
the corporation shall be chosen by the board of directors and shall be a
president, one or more vice presidents, a secretary, a treasurer, and such other
officers as may be elected in accordance with the provisions of Section 5.03 of
this Article. Any number of offices may be held by the same person. Officers
may, but need not, be directors or stockholders of the corporation. The board of
directors may elect from among the members of the board a chairman of the board
and a vice chairman of the board who shall be officers of the corporation. The
president shall be the chief executive officer of the corporation unless the
chairman of the board is so designated by the board of directors.
SECTION 5.02. Election and Term of Office. -- The officers of the
corporation, except those elected by delegated authority pursuant to Section
5.03 of this Article, shall be elected annually by the board of directors, and
each such officer shall hold his office until a successor is elected and
qualified, or until his or her earlier resignation or removal. Any officer may
resign at any time upon notice to the corporation.
SECTION 5.03. Subordinate Officers, Committee and Agents. -- The board of
directors may from time to time elect such other officers and appoint such
committees, employees or other agents as it deems necessary, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as are provided in these bylaws, or as the board of directors may from
time to time determine. The board of directors may delegate to any officer or
committee the power to elect subordinate officers
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and to retain or appoint employees or other agents, or committees thereof, and
to prescribe the authority and duties of such subordinate officers, committees,
employees or other agents.
SECTION 5.04. The Chairman and Vice Chairman of the Board. -- The chairman
of the board, if there be one, or in the absence of the chairman, the vice
chairman of the board, if there be one, shall preside at all meetings of the
stockholders and of the board of directors, and shall perform such other duties
as may from time to time be assigned to them by the board of directors.
SECTION 5.05. The President. -- The president shall have general
supervision over the business and operations of the corporation, subject,
however, to the control of the board of directors. The president shall, in
general, perform all duties incident to the office of president, and such other
duties as from time to time may be assigned by the board of directors and, if
the chairman of the board is the chief executive officer, the chairman of the
board.
SECTION 5.06. The Vice Presidents. -- The vice presidents shall perform
the duties of the president in the absence of the president and such other
duties as may from time to time be assigned to them by the board of directors or
by the president.
SECTION 5.07. The Secretary. -- The secretary, or an assistant secretary,
shall attend all meetings of the stockholders and of the board of directors and
shall record the proceedings of the stockholders and of the directors and of
committees of the board in a book or books to be kept for that purpose; shall
see that notices are given and records and reports properly kept and filed by
the corporation as required by law; shall be the custodian of the seal of the
corporation and see that it is affixed to all documents to be executed on behalf
of the corporation under its seal; and, in general, shall perform all duties
incident to the office of secretary, and such other duties as may from time to
time be assigned by the board of directors or the president.
SECTION 5.08. The Treasurer. -- The treasurer, or an assistant treasurer,
shall have or provide for the custody of the funds or other property of the
corporation and shall keep a separate book account of the same to his credit as
treasurer; shall collect and receive or provide for the collection and receipt
of moneys earned by or in any manner due to or received by the corporation;
shall deposit all funds in his or her custody as treasurer in such banks or
other places of deposit as the board of directors may from time to time
designate; whenever so required by the board of directors, shall render an
account showing his or her transactions as treasurer and the financial condition
of the corporation; and, in general, shall discharge such other duties as may
from time to time be assigned by the board of directors or the president.
SECTION 5.09. Officers' Bonds. -- No officer of the corporation need
provide a bond to guarantee the faithful discharge of the officer's duties
unless the board of directors shall by resolution so require a bond in which
event such officer shall give
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the corporation a bond (which shall be renewed if and as required) 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 office.
SECTION 5.10. Salaries. -- The salaries of the officers and agents of the
corporation elected by the board of directors shall be fixed from time to time
by the board of directors.
ARTICLE VI
Certificates of Stock, Transfer, Etc.
SECTION 6.01. Form and Issuance.
(a) Issuance. -- The shares of the corporation shall be represented by
certificates unless the board of directors shall by resolution provide that some
or all of any class or series of stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until the
certificate is surrendered to the corporation. Notwithstanding the adoption of
any resolution providing for uncertificated shares, every holder of stock
represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the
corporation by, the chairman or vice chairman of the board of directors, or the
president or vice president, and by the treasurer or an assistant treasurer, or
the secretary or an assistant secretary, representing the number of shares
registered in certificate form.
(b) Form and Records. -- Stock certificates of the corporation shall be in
such form as approved by the board of directors. The stock record books and the
blank stock certificate books shall be kept by the secretary or by any agency
designated by the board of directors for that purpose. The stock certificates of
the corporation shall be numbered and registered in the stock ledger and
transfer books of the corporation as they are issued.
(c) Signatures. -- Any of or all the signatures upon the stock
certificates of the corporation may be a facsimile. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, any share certificate shall have ceased to be such officer,
transfer agent or registrar, before the certificate is issued, it may be issued
with the same effect as if the signatory were such officer, transfer agent or
registrar at the date of its issue.
SECTION 6.02. Transfer. -- Transfers of shares shall be made on the share
registrar or transfer books of the corporation upon surrender of the certificate
therefor, endorsed by the person named in the certificate or by an attorney
lawfully constituted in writing. No transfer shall be made which would be
inconsistent with the provisions of Article 8, Title 6 of the Delaware Uniform
Commercial Code-Investment Securities.
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SECTION 6.03. Lost, Stolen, Destroyed or Mutilated Certificates. -- The
board of directors may direct a new certificate of stock or uncertificated
shares 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 or
certificates, 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 certificates, or the legal representative of the owner,
to give the corporation a bond sufficient to indemnify 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 or
uncertificated shares.
SECTION 6.04. Record Holder of Shares. -- 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 provided
by the laws of Delaware.
SECTION 6.05. Determination of Stockholders of Record.
(a) Meetings of Stockholders. -- 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 ten 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 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 or record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting unless the board of
directors fixes a new record date for the adjourned meeting.
(b) Dividends. -- In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights of 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 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.
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SECTION 6.06. Transfer of Rights by Acquiring Person. Rights issued
pursuant to the Amended and Restated Rights Agreement, dated as of January 1,
1999, between the Company and StockTrans (the "Rights Agreement") may be
transferred by an Acquiring Person or an Associate or Affiliate of an Acquiring
Person (as such terms are defined in the Rights Agreement) only in accordance
with the terms of, and subject to the restrictions contained in, the Rights
Agreement.
ARTICLE VII
Indemnification of Directors, Officers and
Other Authorized Representatives
SECTION 7.01. Indemnification of Authorized Representatives in Third Party
Proceedings. -- The corporation shall indemnify any person who was or is an
authorized representative of the corporation, and who was or is a party, or is
threatened to be made a party to any third party proceeding, by reason of the
fact that such person was or is an authorized representative of the corporation,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such third party
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 third party proceeding, had no
reasonable cause to believe such conduct was unlawful. The termination of any
third party 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 authorized representative 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 third party
proceeding, had reasonable cause to believe that such conduct was unlawful.
Notwithstanding anything to the contrary herein, and except as otherwise
provided in Section 7.06, the corporation shall not be required to indemnify any
person in connection with a proceeding (or part thereof) commenced by such
person unless the commencement of such proceeding (or part thereof) was
authorized by the board of directors.
SECTION 7.02. Indemnification of Authorized Representatives in Corporate
Proceedings. -- The corporation shall indemnify any person who was or is an
authorized representative of the corporation and who was or is a party or is
threatened to be made a party to any corporate proceeding, by reason of the fact
that such person was or is an authorized representative of the corporation,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of such corporate proceeding if such person acted
in good faith and in a manner 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 corporate proceeding was
brought shall determine upon application that, despite the adjudication of
liability but in
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view of all the circumstances of the case, such authorized representative is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
SECTION 7.03. Mandatory Indemnification of Authorized Representatives. --
To the extent that an authorized representative or other employee or agent of
the corporation has been successful on the merits or otherwise in defense of any
third party or corporate proceeding or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses actually and
reasonably incurred by such person in connection therewith.
SECTION 7.04. Determination of Entitlement to Indemnification. -- Any
indemnification under Section 7.01, 7.02 or 7.03 of this Article (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 authorized representative
or other employee or agent is proper in the circumstances because such person
has either met the applicable standard of conduct set forth in Section 7.01 or
7.02 or has been successful on the merits or otherwise as set forth in Section
7.03 and that the amount requested has been actually and reasonably incurred.
Such determination shall be made:
(1) by the board of directors by a majority vote of the directors who
were not parties to such third party or corporate proceeding, even though less
than a quorum; or
(2) by a committee of such directors designated by majority vote of
such directors, even though less than a quorum; or
(3) if there are no such directors, or if such directors so directs,
by independent legal counsel in a written opinion; or
(4) by the stockholders.
SECTION 7.05. Advancing Expenses. -- Expenses actually and reasonably
incurred in defending a third party or corporate proceeding shall be paid on
behalf of an authorized representative by the corporation in advance of the
final disposition of such third party or corporate proceeding upon receipt of an
undertaking (if required by law) by or on behalf of the authorized
representative to repay such amount if it shall ultimately be determined that
the authorized representative is not entitled to be indemnified by the
corporation as authorized in this Article. The financial ability of any
authorized representative to make a repayment contemplated by this Section shall
not be a prerequisite to the making of an advance. Expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the board of directors deems appropriate.
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SECTION 7.06. Claims. - If a claim for indemnification or advancement of
expenses under this Article VII is not paid in full within thirty days after a
written claim therefor by a person covered by Article VII hereof has been
received by the corporation, such person may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part, shall be entitled
to be paid the expenses of prosecuting such claim. In any such action, the
corporation shall have the burden of proving that such person is not entitled to
the requested indemnification or advancement of expenses under applicable law.
SECTION 7.07. Definitions. -- For purposes of this Article:
(1) "authorized representative" shall mean any and all directors and
officers of the corporation and any person designated as an authorized
representative by the board of directors of the corporation (which may, but need
not, include any person serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise);
(2) "corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation of merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, 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 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;
(3) "corporate proceeding" shall mean any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor or investigative proceeding by the corporation;
(4) "criminal third party proceeding" shall include any action or
investigation which could or does lead to a criminal third party proceeding;
(5) "expenses" shall include attorneys' fees and disbursements;
(6) "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan;
(7) "not opposed to the best interests of the corporation" shall
include actions taken in good faith and in a manner the authorized
representative reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan;
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(8) "other enterprises" shall include employee benefit plans;
(9) "party" shall include the giving of testimony or similar
involvement;
(10) "serving at the request of the corporation" shall include any
service as a director, officer or employee of the corporation which imposes
duties on, or involves services by, such director, officer or employee with
respect to an employee benefit plan, its participants, or beneficiaries; and
(11) "third party proceeding" shall mean 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.
SECTION 7.08. Insurance. -- The corporation may purchase and maintain
insurance on behalf of any person who 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 person and incurred by the person in any such capacity,
or arising out of his or her 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.
SECTION 7.09. Scope of Article. -- The indemnification of authorized
representatives and advancement of expenses, as authorized by the preceding
provisions of this Article, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office. The indemnification and advancement of
expenses provided by or granted pursuant to this Article shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be an authorized representative and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 7.10. Reliance on Provisions. -- Each person who shall act as an
authorized representative of the corporation shall be deemed to be doing so in
reliance upon rights of indemnification provided by this Article.
ARTICLE VIII
General Provisions
SECTION 8.01. Dividends. -- Subject to the restrictions contained in the
DGCL and any restrictions contained in the certificate of incorporation, the
board of directors may declare and pay dividends upon the shares of capital
stock of the corporation.
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SECTION 8.02. Contracts. -- Except as otherwise provided in these bylaws,
the board of directors may authorize any officer or officers including the
chairman and vice chairman of the board of directors, or any agent or agents, to
enter into any contract or to execute or deliver any instrument on behalf of the
corporation and such authority may be general or confined to specific instances.
SECTION 8.03. Checks. -- All checks, notes, bills of exchange or other
orders in writing shall be signed by such person or persons as the board of
directors may from time to time designate.
SECTION 8.04. Corporate Seal. -- The corporation may have a corporate
seal, which 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 in any
other manner reproduced.
SECTION 8.05. Deposits. -- All funds of the corporation shall be deposited
from time to time to the credit of the corporation in such banks, trust
companies, or other depositories as the board of directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees as the board of directors shall from time to
time determine.
SECTION 8.06. Corporate Records.
(a) Examination by Stockholders. -- Every stockholder of record shall,
upon written demand under oath stating the purpose thereof, have a right to
examine, in person or by agent or attorney, during the usual hours for business,
for any proper purpose, the stock ledger, list of stockholders, books or records
of account, and records of the proceedings of the stockholders and directors of
the corporation, and to make copies or extracts therefrom. A proper purpose
shall mean a 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 which 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 registered office in Delaware
or at its principal place of business. Where the stockholder seeks to inspect
the books and records of the corporation, other than its stock ledger or list of
stockholders, the stockholder shall first establish (1) that the stockholder has
complied with the provisions of this section respecting the form and manner of
making demand for inspection of such documents; and (2) that the inspection
sought is for a proper purpose. Where the stockholder seeks to inspect the stock
ledger or list of stockholders of the corporation and has complied with the
provisions of this section respecting the form and manner of making demand for
inspection of such documents, the burden of proof shall be upon the corporation
to establish that the inspection sought is for an improper purpose.
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(b) Examination by Directors. -- Any director shall have the right to
examine the corporation's stock ledger, a list of its stockholders and its other
books and records for a purpose reasonably related to the person's position as a
director.
SECTION 8.07. Amendment of Bylaws. These bylaws may be altered, amended or
repealed or new bylaws may be adopted either (1) by vote of the stockholders at
a duly organized annual or special meeting of stockholders by the affirmative
vote of the holders of a majority of voting power of the outstanding shares of
capital stock of the corporation entitled to vote generally in the election of
directors, or (2) by vote of a majority of the board of directors at any regular
or special meeting of directors if such power is conferred upon the board of
directors by the certificate of incorporation.
These Amended and Restated Bylaws reflect all amendments as adopted by the Board
of Directors of the corporation on or before July 25, 2002.
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