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EXHIBIT 3.2
EIGHTH AMENDED AND RESTATED BYLAWS
OF
ATRIX LABORATORIES, INC.
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TABLE OF CONTENTS
ARTICLE I Name...........................................................................................1
ARTICLE II Corporate Seal................................................................................1
ARTICLE III Offices......................................................................................1
Section 3.1 Registered Office.........................................................................1
Section 3.2 Other Offices.............................................................................1
ARTICLE IV Stockholders' Meetings........................................................................2
Section 4.1 Place of Meetings.........................................................................2
Section 4.2 Annual Meetings...........................................................................2
Section 4.3 Special Meetings..........................................................................2
Section 4.4 Notice of Meetings........................................................................2
Section 4.5 Quorum and Voting.........................................................................3
Section 4.6 Voting Rights.............................................................................3
Section 4.7 Voting Procedures and Inspectors of Elections.............................................4
Section 4.8 List of Stockholders......................................................................5
Section 4.9 Stockholder Proposals at Annual Meetings..................................................5
Section 4.10 Nominations of Persons for Election to the Board of Directors............................6
Section 4.11 Action Without Meeting...................................................................7
Section 4.12 Cumulative Voting in Certain Circumstances...............................................8
ARTICLE V Directors......................................................................................8
Section 5.1 Number and Term of Office.................................................................8
Section 5.2 Powers....................................................................................9
Section 5.3 Vacancies.................................................................................9
Section 5.4 Resignations and Removals.................................................................9
Section 5.5 Meetings.................................................................................10
Section 5.6 Quorum and Voting........................................................................11
Section 5.7 Action Without Meeting...................................................................11
Section 5.8 Fees and Compensation....................................................................11
Section 5.9 Committees...............................................................................11
Section 5.10 Honorary Directors.......................................................................13
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ARTICLE VI Officers.....................................................................................13
Section 6.1 Officers Designated......................................................................13
Section 6.2 Tenure and Duties of Officers............................................................13
Section 6.3 Removal..................................................................................15
ARTICLE VII Execution of Corporate Instruments and Voting of Securities Owned by the Corporation........15
Section 7.1 Execution of Corporate Instruments.......................................................15
Section 7.2 Voting of Securities Owned by Corporation................................................15
ARTICLE VIII Shares of Stock............................................................................16
Section 8.1 Form and Execution of Certificates.......................................................16
Section 8.2 Lost Certificates........................................................................16
Section 8.3 Transfers................................................................................17
Section 8.4 Fixing Record Dates......................................................................17
Section 8.5 Registered Stockholders..................................................................18
ARTICLE IX Other Securities of the Corporation..........................................................18
ARTICLE X Indemnification of Officers, Directors, Employees and Agents..................................18
Section 10.1 Right to Indemnification................................................................18
Section 10.2 Authority to Advance Expenses...........................................................19
Section 10.3 Right of Claimant to Bring Suit.........................................................19
Section 10.4 Provisions Nonexclusive.................................................................20
Section 10.5 Authority to Insure.....................................................................20
Section 10.6 Survival of Rights......................................................................20
Section 10.7 Settlement of Claims....................................................................20
Section 10.8 Effect of Amendment.....................................................................20
Section 10.9 Subrogation.............................................................................21
Section 10.10 No Duplication of Payments.............................................................21
Section 10.11 Savings Clause.........................................................................21
Section 10.12 Certain Definitions....................................................................21
ARTICLE XI General Provisions...........................................................................22
Section 11.1 Fiscal Year.............................................................................22
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Section 11.2 Dividends...............................................................................22
ARTICLE XII Notices.....................................................................................22
ARTICLE XIII Amendments.................................................................................24
ARTICLE XIV Loans to Officers...........................................................................24
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ATRIX LABORATORIES, INC.
EIGHTH AMENDED AND RESTATED
BYLAWS
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ARTICLE I
NAME
The name of this Corporation shall be "Atrix Laboratories, Inc.,"
incorporated under the laws of the State of Delaware on August 8, 1996.
ARTICLE II
CORPORATE SEAL
The Corporation shall adopt a seal which shall consist of two
concentric circles, and within the outer circle shall be printed the words:
ATRIX LABORATORIES, INC.
DELAWARE
AND WITHIN THE INNER CIRCLE, THE WORDS: SEAL
ARTICLE III
OFFICES
SECTION 3.1 REGISTERED OFFICE.
The registered office of the Corporation in the State of Delaware shall
be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 3.2 OTHER OFFICES.
The Corporation shall also have and maintain an office or principal
place of business at 2579 Midpoint Drive, Fort Collins, Colorado 80525 and may
also have offices at such other places, both within and without the State of
Delaware as the Board of Directors may from time to time determine or the
business of the Corporation may require.
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ARTICLE IV
STOCKHOLDERS' MEETINGS
SECTION 4.1 PLACE OF MEETINGS.
Meetings of the stockholders of the Corporation shall be held at such
place, either within or without the State of Delaware, as may be designated from
time to time by the Board of Directors, or, if not so designated, then at the
office of the Corporation required to be maintained pursuant to Section 3.2 of
Article III hereof.
SECTION 4.2 ANNUAL MEETINGS.
The annual meetings of the stockholders of the Corporation, commencing
with the year 1998, for the purpose of election of directors and for such other
business as may lawfully come before it, shall be held on such date and at such
time as may be designated from time to time by the Board of Directors.
SECTION 4.3 SPECIAL MEETINGS.
Special Meetings of the stockholders of the Corporation may be called
for any purpose or purpose, by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors (whether or
not there exists any vacancies in previously authorized directorship at the time
any such resolution is presented to the Board of Directors for adoption) and
shall be held at such place, on such date, and at such time as the Board of
Directors shall fix. No business may be transacted at such special meeting
otherwise than as specified in such notice.
SECTION 4.4 NOTICE OF MEETINGS.
(a) Except as otherwise provided by law or the Amended and Restated
Certificate of Incorporation, written notice of each meeting of stockholders,
specifying the place, date and hour, and purpose or purposes of the meeting,
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote thereat, directed to
his address as it appears upon the books of the Corporation; except that where
the matter to be acted on is a merger or consolidation of the Corporation or a
sale, lease or exchange of all or substantially all of its assets, such notice
shall be given not less than twenty (20) nor more than sixty (60) days prior to
such meeting.
(b) If at any meeting action is proposed to be taken which, if taken,
would entitle shareholders fulfilling the requirements of Section 262(d) of the
Delaware General Corporation Law to an appraisal of the fair value of their
shares, the notice of such meeting shall contain a statement of that purpose and
to that effect and shall be accompanied by a copy of that statutory section.
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(c) When a meeting is adjourned to another time or place, notice need
not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken unless the
adjournment is for more than thirty (30) days, or unless after the adjournment a
new record date is fixed for the adjourned meeting, in which event a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
(d) Notice of the time, place and purpose of any meeting of
stockholders may be waived in writing, either before or after such meeting, and
to the extent permitted by law, will be waived by any stockholder by his
attendance thereat, in person or by proxy. Any stockholder so waiving notice of
such meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
(e) Unless and until voted, every proxy shall be revocable at the
pleasure of the person who executed it or of his legal representatives or
assigns, except in those cases where an irrevocable proxy permitted by statute
has been given.
SECTION 4.5 QUORUM AND VOTING.
(a) At all meetings of stockholders, except where otherwise provided by
law, the Amended and Restated Certificate of Incorporation, or these Eighth
Amended and Restated Bylaws, the presence, in person or by proxy duly
authorized, of the holders of a majority of the outstanding shares of stock
entitled to vote shall constitute a quorum for the transaction of business.
Shares, the voting of which at said meeting have been enjoined, or which for any
reason cannot be lawfully voted at such meeting, shall not be counted to
determine a quorum at said meeting. In the absence of a quorum, any meeting of
stockholders may be adjourned, from time to time, by vote of the holders of a
majority of the shares represented thereat, but no other business shall be
transacted at such meeting. At such adjourned meeting at which a quorum is
present or represented any business may be transacted which might have been
transacted at the original meeting. The stockholders present at a duly called or
convened 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.
(b) Except as otherwise provided by law, the Amended and Restated
Certificate of Incorporation or these Eighth Amended and Restated Bylaws, all
action taken by the holders of a majority of the voting power represented at any
meeting at which a quorum is present shall be valid and binding upon the
Corporation.
SECTION 4.6 VOTING RIGHTS.
(a) Except as otherwise provided by law, only persons in whose names
shares entitled to vote stand on the stock records of the Corporation on the
record date for determining the stockholders entitled to vote at said meeting
shall be entitled to vote at such meeting. Shares standing in the names of two
or more persons shall be voted or represented in accordance with the
determination of the majority of such persons, or, if only one of such persons
is present in person or represented by proxy, such person shall have the right
to vote such shares and such shares shall be deemed to be represented for the
purpose of determining a quorum.
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(b) Every person entitled to vote or execute consents shall have the
right to do so either in person or by an agent or agents authorized by a written
proxy executed by such person or his duly authorized agent, which proxy shall be
filed with the Secretary of the Corporation at or before the meeting at which it
is to be used. Said proxy so appointed need not be a stockholder. No proxy shall
be voted on after three years from its date unless the proxy provides for a
longer period.
(c) Without limiting the manner in which a stockholder may authorize
another person or persons to act for him as proxy pursuant to subsection (b) of
this section, the following shall constitute a valid means by which a
stockholder may grant such authority:
(1) A stockholder may execute a writing authorizing another person
or persons to act for him as proxy. Execution may be accomplished by the
stockholder or his authorized officer, director, employee or agent 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.
(2) A stockholder may authorize another person or persons to act
for him 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, provided that any such telegram,
cablegram or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the stockholder. If
it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information upon which
they relied.
(d) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (c)
of this section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
SECTION 4.7 VOTING PROCEDURES AND INSPECTORS OF ELECTIONS.
(a) The Corporation shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting and make a written report
thereof. The Corporation 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 duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability.
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(b) The inspectors shall (i) ascertain the number of shares outstanding
and the voting power of each, (ii) determine the shares represented at a meeting
and the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) 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) 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) In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Section 212(c)(2) of the Delaware General Corporation Law, 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 herein, the inspectors at the time they make their
certification pursuant to subsection (b)(v) of this section 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.
SECTION 4.8 LIST OF STOCKHOLDERS.
The officer who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at said meeting, arranged in
alphabetical order, showing the address of and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held and which
place shall be specified in the notice of the meeting, or if not specified, at
the place where said meeting is to be held, and the list shall be produced and
kept at the time and place of meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
SECTION 4.9 STOCKHOLDER PROPOSALS AT ANNUAL MEETINGS.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be: (A) specified in the notice
of meeting (or any supplement thereto)
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given by or at the direction of the Board of Directors, (B) otherwise properly
brought before the meeting by or at the direction of the Board of Directors, or
(C) otherwise properly brought before the meeting by a stockholder. In addition
to other applicable requirements, for business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than forty-five (45)
days nor more than seventy-five (75) days prior to the date on which the
Corporation first mailed its proxy materials for the previous year's annual
meeting of stockholders (or the date on which the Corporation mails its proxy
materials for the current year if during the prior year the Corporation did not
hold an annual meeting or if the date of the annual meeting was changed more
than thirty (30) days from the prior year). A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting: (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (iii) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder, (iv) any material interest of the stockholder in such business and
(v) any other information that is required to be provided by the stockholder
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), in his capacity as a proponent to a stockholder proposal.
Notwithstanding the foregoing, in order to include information with respect to a
stockholder proposal in the proxy statement and form of proxy for a
stockholder's meeting, stockholders must provide notice as required by the
regulations promulgated under the 1934 Act.
The chairman of the annual meeting shall, if the facts warrant,
determine and declare at the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 4.9, and,
if he should so determine, he shall so declare at the meeting that any such
business not properly brought before the meeting shall not be transacted.
Notwithstanding anything in the Eighth Amended and Restated Bylaws to
the contrary, no business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Section 4.9, provided, however,
that nothing in this Section 4.9 shall be deemed to preclude discussion by any
stockholder of any business properly brought before the annual meeting in
accordance with said procedure.
SECTION 4.10 NOMINATIONS OF PERSONS FOR ELECTION TO THE BOARD OF DIRECTORS.
In addition to any other applicable requirements, only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors, by any nominating committee or person
appointed by the Board of Directors or by any stockholder of the Corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Section 4.10. Such nominations, other
than those made by or at the direction of the Board
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of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than thirty (30) days nor more than sixty (60) days prior
to the meeting; provided, however, that in the event that less than forty (40)
days' notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must be so received
not later than the close of business on the tenth (10th) day following the day
on which such notice of the date of the meeting was mailed or such public
disclosure was made. 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, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of the Corporation which are beneficially owned by
the person, (iv) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nominations are to be made by the stockholder,
and (v) any other information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934 (including without limitation such person's written consent
to being named in the proxy statement, if any, as a nominee and to serving as a
director if elected); and (b) as to the stockholder giving the notice, (i) the
name and record address of the stockholder, (ii) the class and number of shares
of the Corporation which are beneficially owned by the stockholder, (iii) the
class and number of shares of the corporation which are beneficially owned by
the person, and (iv) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nominations are to be made by the
stockholder. The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as a director of the
corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth herein.
These provisions shall not apply to nomination of any persons entitled to be
separately elected by holders of preferred stock.
The Chairman of the meeting shall, if the facts warrant, determine and
declare at the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
SECTION 4.11 ACTION WITHOUT MEETING.
Unless otherwise provided in the Amended and Restated Certificate of
Incorporation, any action required by statute to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, are signed by the
holders of eighty percent (80%) of the outstanding stock of the Corporation. To
be effective, a written consent must be delivered to the Corporation by delivery
to its registered office in Delaware, its
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principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. Every written
consent shall bear the date of signature of each stockholder who signs the
consent and no written consent shall be effective to take the corporate action
referred to therein unless, within sixty (60) days of the earliest dated consent
delivered in the manner required by this Section to the Corporation, written
consents signed by a sufficient number of holders to take action are delivered
to the Corporation in accordance with this Section. Prompt notice of the taking
of the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
SECTION 4.12 CUMULATIVE VOTING IN CERTAIN CIRCUMSTANCES.
In any election of directors of the Corporation on or after the date on
which the Corporation becomes aware that any shareholder has become a 30%
Shareholder (as defined below), there shall be cumulative voting for election of
directors so that any holder of shares of Voting Stock (as defined below) may
cumulate the voting power represented by his shares and give one candidate a
number of votes equal to the number of directors to be elected multiplied by the
number of votes to which such shares are entitled, or distribute such votes on
the same principle among as many candidates for election as such holder of share
determines. For the purposes of this section, a "30% Shareholder" shall mean any
person (other than the Corporation and any other corporation of which a majority
of the voting power of the capital stock entitled to vote generally in the
election of directors is owned, directly or indirectly, by the Corporation) who
or which is the beneficial owner, directly or indirectly, of thirty percent
(30%) or more of the outstanding Voting Stock. For the purposes of this section,
"Voting Stock" shall mean the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors. In any vote
required by or provided for in this section, each share of Voting Stock shall
have the number of votes granted to it generally in the election of directors.
ARTICLE V
DIRECTORS
SECTION 5.1 NUMBER AND TERM OF OFFICE.
The authorized number of directors of the Corporation shall be fixed in
accordance with the Amended and Restated Certificate of Incorporation. Directors
need not be stockholders unless so required by the Amended and Restated
Certificate of Incorporation or in this Section 5.1. If for any cause, the
directors shall not have been elected at an annual meeting, they may be elected
as soon thereafter as convenient at a special meeting of the stockholders called
for that purpose in the manner provided in these Eighth Amended and Restated
Bylaws. Subject to the foregoing, the Board of Directors shall consist of at
least three (3), but not more than eleven (11) directors unless changed by
amendment. Directors need not be residents of Delaware.
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The Board of Directors shall be divided into three classes, A, B and C,
as nearly equal in number as the total number of directors constituting the
whole board permits, with the term of office of one class expiring each year.
Directors of Class A shall hold office for an initial term expiring at the
annual shareholder meeting for the year ended 1999, directors of Class B shall
hold office for an initial term expiring at the annual shareholder meeting for
the year ended 2000, and directors of Class C shall hold office for an initial
term expiring at the annual shareholder meeting for the year ended 2001. Subject
to the foregoing, at each annual meeting of shareholders the successors to the
class of directors whose term shall then expire shall be elected to hold office
for a term expiring at the third succeeding annual meeting and each director so
elected shall hold office until his successor is elected and qualified, or until
his earlier resignation or removal. If the number of directors is changed, any
increase or decrease in the number of directors shall be apportioned among the
three classes so as to make all classes as nearly equal in number as possible.
Notwithstanding the foregoing provisions of this Article, each director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
Any amendment, change or repeal of this Section 5.1, or any other
amendment to these Eighth Amended and Restated Bylaws that has the effect of
permitting circumvention of or modifying this Section 5.1, shall require the
favorable vote, at a stockholders' meeting, of the holders of at least eighty
percent (80%) of the then-outstanding shares of stock of the Corporation
entitled to vote.
SECTION 5.2 POWERS.
The powers of the Corporation shall be exercised, its business
conducted and its property controlled by or under the direction of the Board of
Directors.
SECTION 5.3 VACANCIES.
Vacancies and newly created directorships resulting from any increase
in the authorized number of directors may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director, and each director so elected shall hold office for the unexpired
portion of the term of the director whose place shall be vacant, and until his
successor shall have been duly elected and qualified. A vacancy in the Board of
Directors shall be deemed to exist under this section in the case of the death,
removal or resignation of any director, or if the stockholders fail at any
meeting of stockholders at which directors are to be elected (including any
meeting referred to in Section 5.4 below) to elect the number of directors then
constituting the whole Board.
SECTION 5.4 RESIGNATIONS AND REMOVALS.
(a) Any director may resign at any time by delivering his written
resignation to the Secretary, such resignation to specify whether it will be
effective at a particular time, upon
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receipt by the Secretary or at the pleasure of the Board of Directors. If no
such specification is made it shall be deemed effective at the pleasure of the
Board of Directors. When one or more directors shall resign from the Board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office for the
unexpired portion of the term of the director whose place shall be vacated and
until his successor shall have been duly elected and qualified.
(b) Subject to the right of the holders of any series or preferred
stock, no directors shall be removed without cause. Subject to any limitations
imposed by law, the Board of Directors or any individual director may be removed
from office at any time with cause by the affirmative vote of the holders of
eighty percent (80%) of the voting power of all the then outstanding shares of
voting stock of the Corporation entitled to vote at an election of directors.
(c) At a special meeting of stockholders called for the purpose in the
manner hereinabove provided, the Board of Directors, or any individual director,
may be removed from office, with or without cause, and a new director or
directors elected by a vote of stockholders holding a majority of the
outstanding shares entitled to vote at an election of directors.
SECTION 5.5 MEETINGS.
(a) The annual meeting of the Board of Directors shall be held
immediately after the annual stockholders' meeting and at the place where such
meeting is held or at the place announced by the Chairman at such meeting. No
notice of an annual meeting of the Board of Directors shall be necessary and
such meeting shall be held for the purpose of electing officers and transacting
such other business as may lawfully come before it.
(b) Except as hereinafter otherwise provided, regular meetings of the
Board of Directors shall be held in the office of the Corporation required to be
maintained pursuant to Section 3.2 of Article III hereof. Regular meetings of
the Board of Directors may also be held at any place within or without the State
of Delaware which has been designated by resolutions of the Board of Directors
or the written consent of all directors.
(c) Special meetings of the Board of Directors may be held at any time
and place within or without the State of Delaware whenever called by the
Chairman of the Board or, if there is no Chairman of the Board, by the
President, or by any of the directors.
(d) Written notice of the time and place of all regular and special
meetings of the Board of Directors shall be delivered personally to each
director or sent by telegram or facsimile transmission at least forty-eight (48)
hours before the start of the meeting, or sent by first class mail at least one
hundred-twenty (120) hours before the start of the meeting. Notice of any
meeting may be waived in writing at any time before or after the meeting and
will be waived by any director by attendance thereat.
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SECTION 5.6 QUORUM AND VOTING.
(a) A quorum of the Board of Directors shall consist of a majority of
the exact number of directors fixed from time to time in accordance with Section
5.1 of Article V of these Eighth Amended and Restated Bylaws, but not less than
one; provided, however, at any meeting whether a quorum be present or otherwise,
a majority of the directors present may adjourn from time to time until the time
fixed for the next regular meeting of the Board of Directors, without notice
other than by announcement at the meeting.
(b) At each meeting of the Board at which a quorum is present all
questions and business shall be determined by a vote of a majority of the
directors present, unless a different vote be required by law, the Amended and
Restated Certificate of Incorporation, or these Eighth Amended and Restated
Bylaws.
(c) Any member of the Board of Directors, or of any committee thereof,
may participate in a meeting by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
(d) The transactions of any meeting of the Board of Directors, or any
committee thereof, however called or noticed, or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice, if a
quorum be present and if, either before or after the meeting, each of the
directors not present shall sign a written waiver of notice, or a consent to
holding such meeting, or an approval of the minutes thereof. All such waivers,
consents or approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
SECTION 5.7 ACTION WITHOUT MEETING.
Unless otherwise restricted by the Amended and Restated Certificate of
Incorporation or these Eighth Amended and Restated Bylaws, 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
of such committee, as the case may be, consent thereto in writing, and such
writing or writings are filed with the minutes of proceedings of the Board or
committee.
SECTION 5.8 FEES AND COMPENSATION.
Directors and members of committees may receive such compensation, if
any, for their services, and such reimbursement for expenses, as may be fixed or
determined by resolution of the Board of Directors.
SECTION 5.9 COMMITTEES.
(a) EXECUTIVE COMMITTEE: The Board of Directors may appoint an
Executive Committee of not less than one member, each of whom shall be a
director. The Executive Committee, to the extent permitted by law, shall have
and may exercise when the Board of Directors is not in session all powers of the
Board in the management of the business and affairs
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of the Corporation, except such committee shall not have the power or authority
to amend these Eighth Amended and Restated Bylaws or to approve or recommend to
the stockholders any action which must be submitted to stockholders for approval
under the General Corporation Law.
(b) OTHER COMMITTEES: The Board of Directors may, by resolution passed
by a majority of the whole Board, from time to time appoint such other
committees as may be permitted by law. Such other committees appointed by the
Board of Directors shall have such powers and perform such duties as may be
prescribed by the resolution or resolutions creating such committee, but in no
event shall any such committee have the powers denied to the Executive Committee
in these Eighth Amended and Restated Bylaws.
(c) TERM: The members of all committees of the Board of Directors shall
serve a term coexistent with that of the Board of Directors which shall have
appointed such committee. The Board, subject to the provisions of subsections
(a) or (b) of this Section 5.9, may at any time increase or decrease the number
of members of a committee or terminate the existence of a committee; provided,
that no committee shall consist of less than one member. The membership of a
committee member shall terminate on the date of his death or voluntary
resignation, but the Board may at any time for any reason remove any individual
committee member and the Board may fill any committee vacancy created by death,
resignation, removal or increase in the number of members of the committee. 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, and, in addition, in the absence or disqualification of any
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
(d) MEETINGS: Unless the Board of Directors shall otherwise provide,
regular meetings of the Executive Committee or any other committee appointed
pursuant to this Section 5.9 shall be held at such times and places as are
determined by the Board of Directors, or by any such committee, and when notice
thereof has been given to each member of such committee, no further notice of
such regular meetings need be given thereafter; special meetings of any such
committee may be held at the principal office of the Corporation required to be
maintained pursuant to Section 3.2 of Article III hereof; or at any place which
has been designated from time to time by resolution of such committee or by
written consent of all members thereof, and may be called by any director who is
a member of such committee, upon written notice to the members of such committee
of the time and place of such special meeting given in the manner provided for
the giving of written notice to members of the Board of Directors of the time
and place of special meetings of the Board of Directors. Notice of any special
meeting of any committee may be waived in writing at any time after the meeting
and will be waived by any director by attendance thereat. A majority of the
authorized number of members of any such committee shall constitute a quorum for
the transaction of business, and the act of a majority of those present at any
meeting at which a quorum is present shall be the act of such committee.
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SECTION 5.10 HONORARY DIRECTORS.
In addition to the directors of the corporation, there may be as many
honorary directors as the stockholders or the Board of Directors may elect.
Honorary directors shall be elected by the stockholders at any meeting of
stockholders or by the Board of Directors at any meeting of the directors.
Honorary directors shall have no liability after they become honorary directors
for the actions of the Board of Directors and shall not be required to attend
any meeting of the Board of Directors, but shall be notified of all meetings of
the Board of Directors in the same manner as the directors, and if in attendance
at such meetings, shall have all the rights and privileges of directors
(including the right to receive directors' fees and expenses), except the right
to vote on all matters before such meetings and all other matters which may be
brought before the Board of Directors from time to time.
ARTICLE VI
OFFICERS
SECTION 6.1 OFFICERS DESIGNATED.
The officers of the Corporation shall include, if an when designated by
the Board of Directors, the Chairman of the Board of Directors, the Chief
Executive Officer, the President, the Secretary, the Treasurer, the Chief
Financial Officer and one or more Vice-Presidents, assistant secretaries,
assistant treasurers, and such other officers and agents with such powers and
duties as it or he shall deem necessary. The order of the seniority of the
Vice-Presidents shall be in the order of their nomination, unless otherwise
determined by the Board of Directors. The Board of Directors may assign such
additional titles to one or more of the officers as they shall deem appropriate.
Any one person may hold any number of offices of the Corporation at any one time
unless specifically prohibited therefrom by law. The salaries and other
compensation of the officers of the Corporation shall be fixed by or in the
manner designated by the Board of Directors.
SECTION 6.2 TENURE AND DUTIES OF OFFICERS.
(a) GENERAL: All officers shall hold office at the pleasure of the
Board of Directors and until their successors shall have been duly elected and
qualified, unless sooner removed. Any officer elected or appointed by the Board
of Directors may be removed at any time by the Board of Directors. If the office
of any officer becomes vacant for any reason, the vacancy may be filled by the
Board of Directors. Nothing in these Eighth Amended and Restated Bylaws shall be
construed as creating any kind of contractual right to employment with the
Corporation.
(b) DUTIES OF THE CHAIRMAN OF THE BOARD OF DIRECTORS: The Chairman of
the Board of Directors shall preside at all meetings of the shareholders and the
Board of Directors and shall perform such other duties and have such other
powers as the Board of Directors shall designate from time to time.
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(c) DUTIES OF THE VICE CHAIRMAN OF THE BOARD OF DIRECTORS. The Vice
Chairman of the Board of Directors shall, in the absence or disability of the
Chairman of the Board of Directors, perform the duties and exercise the powers
of the Chairman of the Board of Directors. He shall preside at all meetings of
the stockholders and the Board of Directors in the absence of the Chairman. He
shall perform such other duties and have such other powers as the Board of
Directors shall prescribe.
(d) DUTIES OF THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall have such powers and duties as may be prescribed by the Board of
Directors.
(e) DUTIES OF PRESIDENT: The President shall preside at all meetings of
the shareholders and at all meetings of the Board of Directors, unless the
Chairman of the Board of Directors has been appointed and is present. The
President shall perform such other duties and have such other powers as the
Board of Directors shall designate from time to time.
(f) DUTIES OF VICE-PRESIDENTS: The Vice-Presidents, in the order of
their seniority, may assume and perform the duties of the President in the
absence or disability of the President or whenever the office of the President
is vacant. The Vice-President shall perform such other duties and have such
other powers as the Board of Directors or the President shall designate from
time to time.
(g) DUTIES OF SECRETARY: The Secretary shall attend all meetings of the
shareholders and of the Board of Directors and any committee thereof, and shall
record all acts and proceedings thereof in the minute book of the Corporation.
The Secretary shall give notice, in conformity with these Eighth Amended and
Restated Bylaws, of all meetings of the shareholders, and of all meetings of the
Board of Directors and any committee thereof requiring notice. The Secretary
shall perform such other duties and have such other powers as the Board of
Directors shall designate from time to time. The President may direct any
Assistant Secretary to assume and perform the duties of the Secretary in the
absence or disability of the Secretary, and each Assistant Secretary shall
perform such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time.
(h) DUTIES OF CHIEF FINANCIAL OFFICER: The Chief Financial Officer
shall keep or cause to be kept the books of account of the Corporation in a
thorough and proper manner, and shall render statements of the financial affairs
of the Corporation in such form and as often as required by the Board of
Directors or the President. The Chief Financial Officer, subject to the order of
the Board of Directors, shall have the custody of all funds and securities of
the Corporation. The Chief Financial Officer shall perform all other duties
commonly incident to his office and shall perform such other duties and have
such other powers as the Board of Directors or the President shall designate
from time to time. The President may direct the Treasurer or any Assistant
Treasurer to assume and perform the duties of the Chief Financial Officer in the
absence or disability of the Chief Financial Officer, and the Treasurer or each
Assistant Treasurer shall perform such other duties and have such other powers
as the Board of Directors or the President shall designate from time to time.
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SECTION 6.3 REMOVAL.
Any officer may be removed from office at any time, either with or
without cause, by the affirmative vote of a majority of the directors in office
at the time, or by unanimous written consent of the directors in office at the
time, or by any committee or superior officers upon whom such power for removal
may have been conferred by the Board of Directors.
ARTICLE VII
EXECUTION OF CORPORATE INSTRUMENTS AND
VOTING OF SECURITIES OWNED BY THE CORPORATION
SECTION 7.1 EXECUTION OF CORPORATE INSTRUMENTS.
(a) The Board of Directors may, in its discretion, determine the method
and designate the signatory officer or officers, or other person or persons, to
execute any corporate instrument or document, or to sign the corporate name
without limitation, except where otherwise provided by law, and such execution
or signature shall be binding upon the Corporation.
(b) Unless otherwise specifically determined by the Board of Directors
or otherwise required by law, formal contracts of the Corporation, promissory
notes, deeds of trust, mortgages and other evidences of indebtedness of the
Corporation, and other corporate instruments or documents requiring the
corporate seal, and certificates of shares of stock owned by the Corporation,
shall be executed, signed or endorsed by the Chairman of the Board or by the
President; such documents may also be executed by any Vice-President and by the
Secretary or Treasurer or any Assistant Secretary or Assistant Treasurer. All
other instruments and documents requiring the corporate signature, but not
requiring the corporate seal, may be executed as aforesaid or in such other
manner as may be directed by the Board of Directors.
(c) All checks and drafts drawn on banks or other depositories on funds
to the credit of the Corporation, or in special accounts of the Corporation,
shall be signed by such person or persons as the Board of Directors shall
authorize so to do.
SECTION 7.2 VOTING OF SECURITIES OWNED BY CORPORATION.
All stock and other securities of other corporations owned or held by
the Corporation for itself, or for other parties in any capacity, shall be
voted, and all proxies with respect thereto shall be executed by the person
authorized so to do by resolution of the Board of Directors or, in the absence
of such authorization, by the Chairman of the Board or by the President, or by
any Vice-President.
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ARTICLE VIII
SHARES OF STOCK
SECTION 8.1 FORM AND EXECUTION OF CERTIFICATES.
Certificates for the shares of stock of the Corporation shall be in
such form as is consistent with the Amended and Restated Certificate of
Incorporation and applicable law. Every holder of stock in the Corporation shall
be entitled to have a certificate signed by, or in the name of the Corporation
by, the Chairman of the Board or by the President or any Vice-President and by
the Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary,
certifying the number of shares owned by him in the Corporation. Any or all of
the signatures on the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued with the
same effect as if he were such officer, transfer agent, or registrar at the date
of issue. If the Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the Delaware General Corporation Law, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the Corporation shall issue to represent such class or
series of stock, a statement that the Corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
SECTION 8.2 LOST CERTIFICATES.
The Board of Directors may direct a new certificate or certificates to
be issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be
lost 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 or destroyed
certificate or certificates, or his legal representative, to indemnify the
Corporation in such manner as it shall require and/or to give the Corporation a
surety bond in such form and amount as it may direct as indemnity against any
claim that may be made against the Corporation with respect to the certificate
alleged to have been lost or destroyed.
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SECTION 8.3 TRANSFERS.
Transfers of record of shares of stock of the Corporation shall be made
only upon its books by the holders thereof, in person or by attorney duly
authorized, and upon the surrender of a certificate or certificates for a like
number of shares, properly endorsed.
SECTION 8.4 FIXING RECORD DATES.
(a) 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 sixty (60) nor less than ten (10) days before the date of such meeting. If
no record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
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 date on which the meeting is held. A determination of
stockholders of record entitled notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by the Delaware General Corporation Law, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its registered office in
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 are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty (60) days prior to
such action. If no record
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date is fixed, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
SECTION 8.5 REGISTERED STOCKHOLDERS.
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 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.
ARTICLE IX
OTHER SECURITIES OF THE CORPORATION
All bonds, debentures and other corporate securities of the
Corporation, other than stock certificates, may be signed by the Chairman of the
Board or the President or any Vice-President or such other person as may be
authorized by the Board of Directors and the corporate seal impressed thereon or
a facsimile of such seal imprinted thereon and attested by the signature of the
Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer;
provided, however, that where any such bond, debenture or other corporate
security shall be authenticated by the manual signature of a trustee under an
indenture pursuant to which such bond, debenture or other corporate security
shall be issued, the signature of the persons signing and attesting the
corporate seal on such bond, debenture or other corporate security may be the
imprinted facsimile of the signatures of such persons. Interest coupons
appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an
Assistant Treasurer of the Corporation, or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon the facsimile
signature of such person. In case any officer who shall have signed or attested
any bond, debenture or other corporate security, or whose facsimile signature
shall appear thereon or before the bond, debenture or other corporate security
so signed or attested shall have been delivered, such bond, debenture or other
corporate security nevertheless may be adopted by the Corporation and issued and
delivered as though the person who signed the same or whose facsimile signature
shall have been used thereon had not ceased to be such officer of the
corporation.
ARTICLE X
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
SECTION 10.1 RIGHT TO INDEMNIFICATION.
Each person who was or is a party or is threatened to be made a party
to or is involved (as a party, witness, or otherwise) in any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (hereinafter a "Proceeding"),
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by reason of the fact that he, or a person of whom he is the legal
representative, 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 or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, whether the basis of the Proceeding is
alleged action in an official capacity as a director, officer, employee, or
agent or in any other capacity while serving as a director, officer, employee,
or agent (hereafter an "Agent"), shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended or interpreted (but, in the
case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the Corporation to provide broader
indemnification rights than were permitted prior thereto) against all expenses,
liability, and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement, and any
interest, assessments, or other charges imposed thereon, and any federal, state,
local, or foreign taxes imposed on any Agent as a result of the actual or deemed
receipt of any payments under this Article X) reasonably incurred or suffered by
such person in connection with investigating, defending, being a witness in, or
participating in (including on appeal), or preparing for any of the foregoing
in, any Proceeding (hereinafter "Expenses"); provided, however, that except as
to actions to enforce indemnification rights pursuant to Section 10.3 of this
Article, the Corporation shall indemnify any Agent seeking indemnification in
connection with a Proceeding (or part thereof) initiated by such person only if
the Proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Article X shall be a
contract right.
SECTION 10.2 AUTHORITY TO ADVANCE EXPENSES.
The right to indemnification provided in Section 10.1 of this Article
shall include, in advance of a Proceeding's final disposition, the right to be
paid, Expenses incurred in defending that Proceeding; provided, however, that if
required by the Delaware General Corporation Law, as amended, the payment of
such expenses incurred by an officer or director acting in his capacity as such
(and not in any other capacity) in advance of the final disposition of the
Proceeding shall be made only upon delivery to the Corporation of an undertaking
by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized under this Article or otherwise. Any obligation to
reimburse the Corporation for Expense advances shall be unsecured and no
interest shall be charged thereon.
SECTION 10.3 RIGHT OF CLAIMANT TO BRING SUIT.
If a claim under Section 10.1 or 10.2 of this Article is not paid in
full by the Corporation within thirty (30) days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense (including attorneys' fees) of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending a Proceeding in advance of its final disposition
where the required undertaking has been tendered
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to the Corporation) that the claimant has not met the standards of conduct that
make it permissible under the Delaware General Corporation Law for the
Corporation to indemnify the claimant for the amount claimed. The burden of
proving such a defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper under the circumstances
because he has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant had not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that claimant has not
met the applicable standard of conduct.
SECTION 10.4 PROVISIONS NONEXCLUSIVE.
The rights conferred on any person by this Article X shall not be
exclusive of any other rights that such person may have or hereafter acquire
under any statute, provision of the Amended and Restated Certificate of
Incorporation, 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. To the extent that any provision of the
Certificate, agreement, or vote of the stockholders or disinterested directors
is inconsistent with these Eighth Amended and Restated Bylaws, the provision,
agreement, or vote shall take precedence.
SECTION 10.5 AUTHORITY TO INSURE.
The Corporation may purchase and maintain insurance to protect itself
and any Agent against any Expense, whether or not the Corporation would have the
power to indemnify the Agent against such Expense under applicable law or the
provisions of this Article X.
SECTION 10.6 SURVIVAL OF RIGHTS.
The rights provided by this Article X shall continue as to a person who
has ceased to be an Agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
SECTION 10.7 SETTLEMENT OF CLAIMS.
The Corporation shall not be liable to indemnify any Agent under this
Article X (a) for any amounts paid in settlement of any action or claim effected
without the Corporation's written consent, which consent shall not be
unreasonably withheld; or (b) for any judicial award if the Corporation was not
given a reasonable and timely opportunity, at its expense, to participate in the
defense of such action.
SECTION 10.8 EFFECT OF AMENDMENT.
Any amendment, repeal, or modification of this Article shall not
adversely affect any right or protection of any Agent existing at the time of
such amendment, repeal, or modification.
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SECTION 10.9 SUBROGATION.
In the event of payment under this Article, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Agent, who shall execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable the Corporation effectively to bring suit to enforce such
rights.
SECTION 10.10 NO DUPLICATION OF PAYMENTS.
The Corporation shall not be liable under this Article to make any
payment in connection with any claim made against the Agent to the extent the
Agent has otherwise actually received payment (under any insurance policy,
agreement, vote, or otherwise) of the amounts otherwise indemnifiable hereunder.
SECTION 10.11 SAVINGS CLAUSE.
If this Article X or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director and executive officer to the fullest extent
not prohibited by any applicable portion of these Eighth Amended and Restated
Bylaws that shall not have been invalidated, or by any other applicable law.
SECTION 10.12 CERTAIN DEFINITIONS.
For the purposes of this Article X, the following definitions shall
apply:
(1) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation,
prosecution, defense, settlement, arbitration and appeal of, and the
giving of testimony in, any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative.
(2) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness
fees, fines, amounts paid in settlement or judgment and any other costs
and expenses of any nature or kind incurred in connection with any
proceeding.
(3) The term the "Corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer, employee
or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
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trust or other enterprise, shall stand in the same position under the
provisions of these Eighth Amended and Restated Bylaws with respect to
the resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had continued.
(4) References to a "director," "executive officer,"
"officer," "employee," or "agent" of the Corporation shall include,
without limitation, situations where such person is serving at the
request of the Corporation as, respectively, a director, executive
officer, officer, employee, trustee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(5) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include
any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in these Eighth Amended
and Restated Bylaws.
ARTICLE XI
GENERAL PROVISIONS
SECTION 11.1 FISCAL YEAR.
The fiscal year of the Corporation shall begin on the first (1st) day
of January and end on the thirty-first (31st) day of December in each year.
SECTION 11.2 DIVIDENDS.
The Board of Directors may declare and the Corporation may pay
dividends on its outstanding shares in cash, property, or its own shares
pursuant to law and subject to the provisions of its Amended and Restated
Certificate of Incorporation.
ARTICLE XII
NOTICES
Whenever, under any provisions of these Eighth Amended and Restated
Bylaws, notice is required to be given to any stockholder, the same shall be
given in writing, timely and duly deposited in the United States Mail, postage
prepaid, and addressed to his last known post office address as shown by the
stock record of the Corporation or its transfer agent. Any notice
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required to be given to any director may be given by the method hereinabove
stated, or by telegram or other means of electronic transmission, except that
such notice other than one which is delivered personally, shall be sent to such
address or (in the case of facsimile telecommunication) facsimile telephone
number as such director shall have filed in writing with the Secretary of the
Corporation, or, in the absence of such filing, to the last known post office
address of such director. If no address of a stockholder or director be known,
such notice may be sent to the office of the Corporation required to be
maintained pursuant to Section 3.2 of Article III hereof. An affidavit of
mailing, executed by a duly authorized and competent employee of the Corporation
or its transfer agent appointed with respect to the class of stock affected,
specifying the name and address or the names and addresses of the stockholder or
stockholders, director or directors, to whom any such notice or notices was or
were given, and the time and method of giving the same, shall be conclusive
evidence of the statements therein contained. All notices given by mail, as
above provided, shall be deemed to have been given as at the time of mailing and
all notices given by telegram or other means of electronic transmission shall be
deemed to have been given as at the sending time recorded by the telegraph
company or other electronic transmission equipment operator transmitting the
same. It shall not be necessary that the same method of giving be employed in
respect of all directors, but one permissible method may be employed in respect
of any one or more, and any other permissible method or methods may be employed
in respect of any other or others. The period or limitation of time within which
any stockholder may exercise any option or right, or enjoy any privilege or
benefit, or be required to act, or within which any director may exercise any
power or right, or enjoy any privilege, pursuant to any notice sent him in the
manner above provided, shall not be affected or extended in any manner by the
failure of such a stockholder or such director to receive such notice. Whenever
any notice is required to be given under the provisions of the statutes or of
the Amended and Restated Certificate of Incorporation, or of these Eighth
Amended and Restated Bylaws, a waiver thereof in writing signed by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. Whenever notice is required to be
given, under any provision of law or of the Amended and Restated Certificate of
Incorporation or these Eighth Amended and Restated Bylaws of the Corporation, 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. In the event that the action
taken by the Corporation is such as to require the filing of a certificate under
any provision of the Delaware General Corporation Law, the certificate shall
state, if such is the fact and if notice is required, that notice was given to
all persons entitled to receive notice except such persons with whom
communication is unlawful.
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ARTICLE XIII
AMENDMENTS
Subject to Section 10.8 of these Eighth Amended and Restated Bylaws,
(i) the affirmative vote of at least eighty percent (80%) of the voting power of
all of the then outstanding shares of the voting stock, shall be required to
alter, amend or repeal Sections 4.3, 4.9, 4.11, 5.1, 5.2, 5.3, 5.4, Article X
and Article XIII of these Eighth Amended and Restated Bylaws or to adopt any
other provision inconsistent with such provisions of these Eighth Amended and
Restated Bylaws, and (ii) the affirmative vote of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding
shares of the Voting Stock shall be required to alter, amend or repeal any other
provision of these Eighth Amended and Restated Bylaws or to adopt any other
provision inconsistent with any other such provision of the Eighth Amended and
Restated Bylaws. The Board of Directors shall also have the power to adopt,
amend or repeal these Eighth Amended and Restated Bylaws.
ARTICLE XIV
LOANS TO OFFICERS
The Corporation may lend money to guarantee any obligation of, or
otherwise assist any officer or other employee of the Corporation or of its
subsidiaries, including any officer or employee who is a director of the
Corporation or its subsidiaries, whenever, in the judgment of the Board of
Directors, such loan, guarantee or assistance may reasonably be expected to
benefit the Corporation. The loan, guarantee or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the Corporation. Nothing in these Eighth Amended and Restated Bylaws
shall be deemed to deny, limit or restrict the powers of guaranty or warranty of
the Corporation at common law or under any statute.
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CERTIFICATE OF SECRETARY
The undersigned, Secretary of ATRIX LABORATORIES, INC., a
Delaware corporation, hereby certifies that the foregoing is a full, true and
correct copy of the Eighth Amended and Restated Bylaws of said Corporation, with
all amendments to date of this Certificate.
WITNESS the signature of the undersigned this 26th day of April,
1999.
/s/ Brian G. Richmond
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Brian G. Richmond, Assistant Secretary
i