Exhibit 3.3
AMENDED AND RESTATED BY-LAWS
OF
CLOSURE MEDICAL CORPORATION
(a Delaware Corporation)
(effective June 17, 2002)
ARTICLE I
Offices, Fiscal Year and Records
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.
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.
1.03 Fiscal Year. The fiscal year of the Corporation shall end on the 31st
of December in each year.
1.04 Books and Records. The books and records of the Corporation may be
kept outside the State of Delaware at such place or places as may from time to
time be designated by the Board of Directors. The stockholders and directors of
the Corporation shall have examination rights as specified in Section 7.05 of
these By-Laws.
ARTICLE II
Stockholders
2.01 Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held on such date and at such place and time as may be
fixed by resolution of the Board of Directors.
2.02 Special Meeting. Subject to the rights of the holders of any series of
stock having a preference over the Common Stock of the Corporation as to
dividends or upon liquidation ("Preferred Stock") with respect to such series of
Preferred Stock, special meetings of the stockholders may be called only by the
Chairman of the Board of Directors or by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of directors which the
Corporation would have if there were no vacancies (the "Whole Board").
2.03 Place of Meeting. The Board of Directors or the Chairman of the Board,
as the case may be, may designate the place of meeting for any annual meeting or
for any special meeting of the stockholders called by the Board of Directors or
the Chairman of the Board. If no designation is so made, the place of meeting
shall be the principal office of the Corporation. The Board of Directors, or the
Chairman of the Board, as the case may be, may, in its or in his or her sole
discretion, as the case may be, determine (i) that
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the meeting shall not be held at any place, but shall instead be held solely by
means of remote communication equipment or (ii) that in addition to being held
at the place specified in the notice of the meeting, the stockholders may
participate in the meeting and be deemed present in person and vote by means of
remote communication equipment. Subject to any guidelines or procedures adopted
by the Board of Directors, stockholders and proxy holders not physically present
at a meeting of stockholders but who attend by means of remote communication
approved by the Board of Directors may participate in the meeting and be deemed
present in person and vote at the meeting; provided, however, that (i) the
Corporation must implement reasonable measures to verify that each person deemed
present and permitted to vote at the meeting by means of remote communication is
a stockholder or proxy holder, (ii) the Corporation must implement reasonable
measures to provide such stockholders and proxy holders a reasonable opportunity
to participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii) if any
stockholder or proxy holder votes or takes other action at the meeting by means
of remote communication, a record of such vote or other action shall be
maintained by the Corporation.
2.04 Notice of Meeting. Whenever, under the provisions of the General
Corporation Law of the State of Delaware, the Certificate of Incorporation or
these By-Laws, notice of a meeting is required to be given to any stockholder,
it shall mean (i) notice in writing delivered personally or mailed to the
stockholder, or (ii) if consented to by the stockholder, notice by a form of
communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process (any such method, an "electronic transmission").
Except as otherwise may be required by law, notice of each meeting of
stockholders, shall state the purpose or purposes of the meeting, the place, if
any, date and hour of the meeting, and the means of remote communication, if
any, by which stockholders and proxy holders may be deemed to be present in
person and vote at such meeting. Unless the notice is for an Annual Meeting, the
notice shall also indicate that the notice is being issued by or at the
direction of the person or persons calling the meeting. Notice of any meeting of
stockholders, whether an Annual Meeting or a special meeting, shall be given not
less than ten (10) nor more than sixty (60) days before the date of said
meeting, to each stockholder entitled to vote at such meeting; provided,
however, that the Corporation shall also comply with any applicable rules as to
the timing of notice of a meeting of stockholders imposed by any securities
exchange upon which any of its shares are then listed. Meetings may be held
without notice if all stockholders entitled to vote are present, or if notice is
waived by those not present in accordance with Section 7.02 of these By-Laws.
Any previously scheduled meeting of the stockholders may be postponed, and
(unless the Certificate of Incorporation otherwise provides) any special meeting
of the stockholders may be cancelled, by resolution of the Board of Directors
upon public notice given prior to the date previously scheduled for such meeting
of stockholders.
2.05 Quorum and Adjournment. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the voting power of
the outstanding shares of the Corporation entitled to vote generally in the
election of directors (the "Voting Stock"), represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders, except that when
specified business is to be voted on by a class or series of stock voting as a
class, the holders of a majority of the shares of such class or series shall
constitute a quorum of such class or series for the transaction of such
business. The Chairman of the meeting or a majority of the shares so represented
may adjourn the meeting from time to time, whether or not there is such a
quorum. No notice of the time and place of adjourned meetings need be given
except as required by law. The stockholders present at a duly called meeting at
which a quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
2.06 Proxies. At all meetings of stockholders, a stockholder may vote by
proxy executed in writing (or in such manner prescribed by the General
Corporation Law of the State of Delaware) by the stockholder, or by his duly
authorized attorney in fact.
2.07 Notice of Stockholder Business and Nominations.
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(A) Annual Meetings 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 (a) pursuant to
the Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this By-Law, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this By-Law.
(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 By-Law, 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 at the principal
executive offices of the Corporation not later than the close of business on the
60th day nor earlier than the close of business on the 90th 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 30 days
before or more than 60 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 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the l0th 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 reelection as a director all information relating to
such person that is required to be disclosed in solicitations of 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 Rule 14a-11 thereunder (including 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 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 and (ii) the class or series and number of shares of the
Corporation which are owned of record and beneficially by such stockholder and
such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this By-Law 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
70 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 at the principal executive
offices of the Corporation not later than the close of business on the l0th 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 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 of giving of notice
provided for in this By-Law, 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,
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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 By-Law
shall be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the 90th day prior to such
special meeting and not later than the close of business on the later of the
60th day prior to such special meeting or the 10th 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 By-Law shall be eligible 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 By-Law. Except as otherwise provided by law, the Certificate of
Incorporation, or these By-Laws, the Chairman of the meeting shall have the
power and duty to 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 By-Law and, if any proposed
nomination or business is not in compliance with this By-Law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "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 By-Law, 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 By-Law. Nothing in this By-Law 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 under
specified circumstances.
2.08 Procedure for Election of Directors; Required Vote. Election of
directors at all meetings of the stockholders at which directors are to be
elected shall be by ballot, and, subject to the rights of the holders of any
series of Preferred Stock to elect directors under specified circumstances, a
plurality of the votes cast thereat shall elect directors. Except as otherwise
provided by law, the Certificate of Incorporation, or these By-Laws, in all
matters other than the election of directors, the affirmative vote of a majority
of the shares present in person or represented by proxy at the meeting and
entitled to vote on the matter shall be the act of the stockholders.
2.09 Inspectors of Elections; Opening and Closing the Polls. The Board of
Directors by resolution shall appoint one or more inspectors, which inspector or
inspectors may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of stockholders, the Chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall have the
duties prescribed by law.
The Chairman of the meeting shall fix and announce at the meeting 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.
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2.10 No Stockholder Action by Written Consent. Subject to the rights of the
holders of any series of Preferred Stock with respect to such series of
Preferred Stock, any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
ARTICLE III
Board of Directors
3.01 General Powers. The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon it, the Board of
Directors 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.
3.02 Number; Classification. Subject to the rights of the holders of any
series of Preferred Stock to elect directors under specified circumstances, the
number of directors shall be fixed from time to time exclusively pursuant to a
resolution adopted by a majority of the Whole Board. Commencing May 30, 1996,
the directors, other than those who may be elected by the holders of any series
of Preferred Stock under specified circumstances, shall be divided, with respect
to the time for which they severally hold office, into three classes, as nearly
equal in number as possible, with the term of office of the first class (Class
I) to expire at the 1997 annual meeting of stockholders, the term of office of
the second class (Class II) to expire at the 1998 annual meeting of stockholders
and the term of office of the third class (Class III) to expire at the 1999
annual meeting of stockholders, with each director to hold office until his or
her successor shall have been duly elected and qualified. At each annual meeting
of stockholders, commencing with the 1997 annual meeting, (i) directors elected
to succeed those directors whose terms then expire shall be elected for a term
of office to expire at the third succeeding annual meeting of stockholders after
their election, with each director to hold office until his or her successor
shall have been duly elected and qualified, and (ii) if authorized by a
resolution of the Board of Directors, directors may be elected to fill any
vacancy on the Board of Directors, regardless of how such vacancy shall have
been created.
3.03 Regular Meetings. A regular meeting of the Board of Directors shall be
held without other notice than this By-Law immediately after, and at the same
place as, the annual meeting of stockholders, or at such other place or time as
the Board of Directors may determine by resolution and without other notice than
such resolution. The Board of Directors may, by resolution, provide the time and
place for the holding of additional regular meetings without other notice than
such resolution.
3.04 Special Meetings. Special meetings of the Board of Directors shall be
called at the request of the Chairman of the Board, the President or a majority
of the Board of Directors then in office. The person or persons authorized to
call special meetings of the Board of Directors may fix the place and time of
the meetings.
3.05 Notice. Whenever, under the provisions of the General Corporation Law
of the State of Delaware, the Certificate of Incorporation or these By-Laws,
notice of a meeting is required to be given to any director, it shall mean (i)
notice in writing delivered personally or mailed (whether by United States mail,
courier or other form of express delivery service) to the director at such
director's address as it appears on the books of the Corporation or (ii) if
consented to by the director, notice by facsimile or other electronic
transmission at the number or electronic address provided by such director for
such notice. Notice of a regular meeting of the Board of Directors need not be
given. Notice of each special meeting of the Board of Directors stating the
time, place and purposes thereof, shall be (i) mailed by United States mail to
each director not less than five (5) days prior to the meeting, addressed to
such director at his or her residence or usual place of business, (ii) sent by
courier or other form of express delivery service not less than twenty-four (24)
hours prior to such special meeting, (iii) given personally not less than twenty
four (24) hours before the meeting, or (iv) if such director has consented to
notice by facsimile or other electronic transmission, given
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by facsimile or other electronic transmission not less than twelve (12) hours
before the meeting. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board of Directors need be specified
in the notice of such meeting, except for amendments to these By-Laws, as
provided under Section 8.09. A meeting may be held at any time without notice if
all the directors are present or if those not present waive notice of the
meeting in accordance with Section 7.02 of these By-Laws.
3.06 Action by Consent of Board of Directors. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board of
Directors or committee.
3.07 Conference Telephone Meetings. Members of the Board of Directors, or
any committee thereof, may participate in a meeting of the Board of Directors or
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at such meeting.
3.08 Quorum. Subject to Section 3.09, a whole number of directors equal to
at least a majority of the Whole Board shall constitute a quorum for the
transaction of business, but if at any meeting of the Board of Directors there
shall be less than a quorum present, a majority of the directors present may
adjourn the meeting from time to time without further notice. The act of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. The directors present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum.
3.09 Vacancies. Subject to applicable law and the rights of the holders of
any series of Preferred Stock with respect to such series of Preferred Stock,
and unless the Board of Directors otherwise determines, vacancies resulting from
death, resignation, retirement, disqualification, removal from office or other
cause, and newly created directorships resulting from any increase in the
authorized number of directors, may be filled only by the affirmative vote of a
majority of the remaining directors, though less than a quorum of the Board of
Directors, and directors so chosen shall hold office for a term expiring at the
annual meeting of stockholders at which the term of office of the class to which
they have been elected expires and until such director's successor shall have
been duly elected and qualified. No decrease in the number of authorized
directors constituting the Whole Board shall shorten the term of any incumbent
director.
3.10 Executive and Other Committees. The Board of Directors may, by
resolution adopted by a majority of the Whole Board, designate an Executive
Committee to exercise, subject to applicable provisions of law, all the powers
of the Board of Directors in the management of the business and affairs of the
Corporation when the Board is not in session, including without limitation the
power to declare dividends, to authorize the issuance of the Corporation's
capital stock and adopt a certificate of ownership and merger pursuant to
Section 253 of the General Corporation Law of the State of Delaware, and may, by
resolution similarly adopted, designate one or more other committees. The
Executive Committee and each such other committee shall consist of two or more
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 the committee. Any such committee, other
than the Executive Committee (the powers of which are expressly provided for
herein), may to the extent permitted by law exercise such powers and shall have
such responsibilities as shall be specified in the designating resolution. In
the absence or disqualification of any member of such committee or committees,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member. Each committee shall keep written minutes of its
proceedings and shall report such proceedings to the Board of Directors when
required.
A majority of any committee may determine its action and fix the time and
place of its meetings, unless the Board of Directors shall otherwise provide.
Notice of such meetings shall be given to each
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member of the committee in the manner provided for in Section 3.05 of these
By-Laws. The Board of Directors shall have power at any time to fill vacancies
in, to change the membership of, or to dissolve any such committee. Nothing
herein shall be deemed to prevent the Board of Directors from appointing one or
more committees consisting in whole or in part of persons who are not directors
of the Corporation; provided, however, that no such committee shall have or may
exercise any authority of the Board of Directors.
3.11 Removal. Subject to the rights of the holders of any series of
Preferred Stock with respect to such series of Preferred Stock, 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 75 percent
of the voting power of all of the then-outstanding shares of Voting Stock,
voting together as a single class.
3.12 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.
3.13 Records. The Board of Directors shall cause to be kept a record
containing the minutes of the proceedings of the meetings of the Board and its
committees and of the stockholders, appropriate stock books and registers and
such books of records and accounts as may be necessary for the proper conduct of
the business of the Corporation.
ARTICLE IV
Officers
4.01 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 4.03 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 may be officers of the Corporation if so
designated by the Board. The Chairman of the Board or the President, as
designated from time to time by the Board of Directors, shall be the chief
executive officer of the Corporation. All officers elected by the Board of
Directors shall each have such powers and duties as generally pertain to their
respective offices, subject to the specific provisions of this Article IV. Such
officers shall also have such powers and duties as from time to time may be
conferred by the Board of Directors or by any committee thereof.
4.02 Election and Term of Office. The officers of the Corporation, except
those elected by delegated authority pursuant to Section 4.03 of this Article,
shall be elected annually by the Board of Directors, and each such officer shall
hold office for a term of one year and until a successor is elected and
qualified, or until his or her earlier resignation or removal.
4.03 Subordinate Officers, Committees 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 By-Laws, 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 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.
4.04 Removal. Any officer elected, or agent appointed, by the Board of
Directors may be removed by the affirmative vote of a majority of the Whole
Board whenever, in their judgment, the best interests of the Corporation would
be served thereby. Any officer or agent appointed by another officer by
delegated authority pursuant to Section 4.03 may be removed by him whenever, in
his judgment, the best interests of the Corporation would be served thereby. No
elected officer shall have any contractual rights
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against the Corporation for compensation by virtue of such election beyond the
date of the election of his successor, his death, his resignation or his
removal, whichever event shall first occur, except as otherwise provided in an
employment contract or under an employee deferred compensation plan.
4.05 Vacancies. A newly created elected office and a vacancy in any
elected office because of death, resignation, or removal may be filled by the
Board of Directors for the unexpired portion of the term at any meeting of the
Board of Directors. Any vacancy in an office appointed by another officer by
delegated authority pursuant to Section 4.03 because of death, resignation, or
removal may be filled by such other officer.
4.06 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.
4.07 The President. The President shall have general supervision over the
business, operations and affairs 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.
4.08 The Vice Presidents. The Vice Presidents shall perform such duties as
may from time to time be assigned to them by the Board of Directors or by the
chief executive officer (either the Chairman of the Board or the President).
4.09 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 chief executive officer (either the Chairman of the
Board or the President).
4.10 The Treasurer. The Treasurer, or an Assistant Treasurer, shall have or
provide for the custody of the funds or other property of the Corporation; 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 chief executive officer (either the
Chairman of the Board or the President).
4.11 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 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.
4.12 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.
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ARTICLE V
Certificates of Stock, Transfer, Etc.
5.01 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 stock 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.
5.02 Transfer. Transfers of shares shall be made on the stock register 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.
5.03 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 uncertificated
shares, 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.
5.04 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 shall be entitled
to hold liable for calls and assessments a person registered on its books as the
owner of shares. The Corporation 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.
5.05 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
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thereof, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than 60 nor
less than 10 days before the date of such meeting. If no record date is fixed by
the Board of Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting 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.
ARTICLE VI
Indemnification of Directors, Officers and Other Authorized Representatives
6.01 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.
6.02 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; 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 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.
6.03 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
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therein, such person shall be indemnified against expenses actually and
reasonably incurred by such person in connection therewith.
6.04 Determination of Entitlement to Indemnification. Any indemnification
under Section 6.01, 6.02 or 6.03 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 6.01 or 6.02 or has
been successful on the merits or otherwise as set forth in Section 6.03 and that
the amount requested has been actually and reasonably incurred. Such
determination shall be made:
(a) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such third party or corporate
proceeding; or
(b) if such a quorum is not obtainable, or even if obtainable,
a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion; or
(c) by the stockholders.
6.05 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 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.
6.06 Definitions. For purposes of this Article:
(a) "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);
(b) "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;
(c) "criminal third party proceeding" shall include any action
or investigation which could or does lead to a criminal third party proceeding;
(d) "expenses" shall include attorneys' fees and disbursements;
(e) "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan;
(f) "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;
(g) "other enterprises" shall include employee benefit plans;
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(h) "party" shall include the giving of testimony or similar
involvement;
(i) "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
(j) "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.
6.07 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 other enterprise against any expense, loss or liability
incurred by such 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 expense, loss or liability
under the provisions of this Article or any applicable law.
6.08 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 law
(common or statutory), 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.
6.09 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.
6.10 Subsequent Amendment. No amendment, termination or repeal of this
Article or of the relevant provisions of the General Corporation Law of the
State of Delaware or any other applicable laws shall affect or diminish in any
way the rights of any authorized representative or other employee or agent of
the Corporation to indemnification under the provisions hereof with respect to
any action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
6.11 Other Rights. Nothing contained in this Article shall be deemed to
prohibit, and the Corporation is specifically authorized to enter into,
agreements with authorized representatives providing indemnification rights and
procedures different from those set forth in this Article. In addition, the
Corporation may grant indemnification rights to other persons serving the
Corporation and such rights may be equivalent to, or greater or less than, those
set forth in this Article.
6.12 Partial Indemnification. If an authorized representative or other
employee or agent of the Corporation is entitled under any provision of this
Article to indemnification by the Corporation for some or a portion of the
expenses, judgments, fines or amounts paid in settlement actually and reasonably
incurred by such authorized representative or other employee or agent of the
Corporation or on such authorized representative or other employee or agent of
the Corporation's behalf in connection with any action, suit, proceeding or
investigation and any appeal therefrom but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify such authorized
representative or other employee or agent of the
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Corporation for the portion of such expenses, judgments, fines or amounts paid
in settlement to which such authorized representative or other employee or agent
of the Corporation is entitled.
6.13 Merger or Consolidation. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
6.14 Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each authorized representative or other
employee or agent of the Corporation as to any expenses, judgments, fines and
amounts paid in settlement in connection with any action, suit, proceeding or
investigation, whether civil, criminal or administrative, including an action by
or in the right of the Corporation, to the fullest extent permitted by any
applicable portion of this Article that shall not have been invalidated and to
the fullest extent permitted by applicable law.
6.15 Subsequent Legislation. If the General Corporation Law of the State
of Delaware is amended after adoption of this Article to expand further the
indemnification permitted to authorized representatives, then this Article shall
be deemed and construed to require the Corporation to indemnify such persons to
the fullest extent permitted by the General Corporation Law of the State of
Delaware, as so amended.
ARTICLE VII
Notices
7.01 Notices. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder, director,
officer, employee or agent, or to the Corporation, may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the mails, postage paid, or with a recognized overnight delivery
service or by sending such notice by prepaid telegram, mailgram, by facsimile
transmission or other form of electronic transmission. If the notice is sent by
mail, it shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder, director, officer, employee or
agent at such person's or entity's address as it appears on the books of the
Corporation. If notice is given by facsimile telecommunication, it shall be
deemed to be given when directed to a number at which the person or entity has
consented to receive notice. If notice is given by electronic mail, it shall be
deemed to be given when directed to an electronic mail address at which the
person or entity has consented to receive notice. If notice is given by a
posting on an electronic network together with separate notice of such specific
posting, it shall be deemed to be given upon the later of such posting and the
giving of such separate notice. If notice is given by another form of electronic
transmission, it shall be deemed to be given when directed to the person or
entity. Any consent to receipt of notice by electronic transmission shall be
revocable upon written notice to the Corporation by the stockholder, director or
other person or entity who has given such consent. An affidavit of the Secretary
or an Assistant Secretary or of the transfer agent or other agent of the
Corporation that notice has been given by a form of electronic transmission
shall, in the absence of fraud, be prima facie evidence of the facts stated
therein.
7.02 Waivers. A written waiver, or a waiver by electronic transmission,
of any notice, by a stockholder, director, officer, employee or agent, whether
before or after the time of the event for which notice is to be given, shall be
deemed equivalent to the notice required to be given to such stockholder,
director, officer, employee or agent. Neither the business nor the purpose of
any meeting need be specified in such a waiver. 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.
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7.03 Exception to Requirements of Notice.
(a) General Rule. Whenever notice is required to be given,
under any provision of the General Corporation Law of the State of Delaware or
the Certificate of Incorporation or these By-Laws, to any person with whom
communication is unlawful, the giving of such notice to 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 General Corporation Law of
the State of Delaware or the Certificate of Incorporation or these By-Laws, 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 twelve (12) month period, have
been mailed addressed to such person at such person's 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 to 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. The exception in clause (i) of this subsection (b) shall not be
applicable to any notice returned as undeliverable if the notice given was by
electronic transmission.
(c) Undeliverable Electronic Transmissions. Any consent to
delivery of notice by electronic transmission shall be deemed revoked if (i) the
Corporation is unable to deliver by electronic transmission two consecutive
notices by the Corporation in accordance with such consent and (ii) such
inability becomes known to the Secretary or an Assistant Secretary of the
Corporation or to the transfer agent or other person responsible for the giving
of notice; provided, however, that the inadvertent failure to treat such
inability as a revocation shall not invalidate any meeting or other action. In
the event any consent to electronic delivery is deemed revoked under this
Section 7.03(c), delivery of notice shall be made by other means unless subject
to an exception under subsections (a) or (b) above.
ARTICLE VIII
General Provisions
8.01 Dividends. Subject to the restrictions contained in the General
Corporation Law of the State of Delaware 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.
8.02 Contracts. Except as otherwise required by law, the Certificate of
Incorporation, or these By-Laws, any contracts or other instruments may be
executed and delivered in the name and on the behalf of the Corporation by such
officer or officers of the Corporation as the Board of Directors may from time
to time direct. Such authority may be general or confined to specific instances
as the Board may determine. The Chairman of the Board, if an executive officer,
the President or any Vice President may execute bonds, contracts, deeds, leases,
and other instruments to be made or executed for or on behalf of the
Corporation. Subject to any restrictions imposed by the Board of Directors, the
Chairman of the Board, if an executive officer, the President or any Vice
President of the Corporation may delegate contractual powers to others under his
jurisdiction, it being understood, however, that any such delegation of power
shall not relieve such officer of responsibility with respect to the exercise of
such delegated power.
8.03 Corporate Seal. The Corporation shall 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".
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The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or in any other manner reproduced.
8.04 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.
8.05 Corporate Records.
(a) Examination by Stockholders. Every stockholder 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.
(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.
8.06 Resignations. Any director or any officer, whether elected or
appointed, may resign at any time by giving written notice of such resignation
to the Chairman of the Board, the President, or the Secretary, and such
resignation shall be deemed to be effective as of the close of business on the
date said notice is received by the Chairman of the Board, the President, or the
Secretary, or at such later time as is specified therein. No formal action shall
be required of the Board of Directors or the stockholders to make any such
resignation effective.
8.07 Proxies. Unless otherwise provided by resolution adopted by the
Board of Directors, the Chairman of the Board, the President or any Vice
President may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation, in the name and on behalf of the Corporation, to cast
the votes which the Corporation may be entitled to cast as the holder of stock
or other securities in any other corporation, any of whose stock or other
securities may be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation, or to consent in writing,
in the name of the Corporation as such holder, to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed in the name and on behalf of the Corporation and under its corporate
seal or otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
8.08 Amendment of By-Laws. These By-Laws may be altered, amended, or
repealed at any meeting of the Board of Directors or of the stockholders,
provided notice of the proposed change was given in the notice of the meeting
and, in the case of a meeting of the Board of Directors, in a notice given not
less than two days prior to the meeting; provided, however, that, in the case of
amendments by the Board of
15
Directors, notwithstanding any other provisions of these By-Laws or any
provision of law which might otherwise permit a lesser vote or no vote, the
affirmative vote of at least 75 percent of the directors then in office shall be
required to alter, amend or repeal any provision of these By-Laws; and further
provided, that in the case of amendments by stockholders, notwithstanding any
other provisions of these By-Laws or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class or series of the capital stock of the
Corporation required by law, the Certificate of Incorporation or these By-Laws,
the affirmative vote of the holders of at least 75 percent of the voting power
of all the then outstanding shares of the Voting Stock, voting together as a
single class, shall be required to alter, amend or repeal any provision of these
By-Laws.
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