<Page>
EXHIBIT 3.10
BY-LAWS
OF
BROOKS PHARMACY, INC.
(a Delaware Corporation)
Adopted December 28, 2001
<Page>
TABLE OF CONTENTS
<Table>
PAGE
ARTICLE I OFFICES AND SEAL......................................................1
SECTION 1. Registered Office....................................................1
SECTION 2. Other Offices........................................................1
SECTION 3. Seal.................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS.............................................1
SECTION 1. Place of Meeting.....................................................1
SECTION 2. Annual Meeting.......................................................1
SECTION 3. Special Meetings.....................................................1
SECTION 4. Notice...............................................................2
SECTION 5. Presiding Officer....................................................2
SECTION 6. Quorum and Adjournments..............................................2
SECTION 7. Votes; Proxies.......................................................3
SECTION 8. Action Without Meeting...............................................3
ARTICLE III DIRECTORS...........................................................4
SECTION 1. General Powers.......................................................4
SECTION 2. Number and Election..................................................4
SECTION 3. Term of Office.......................................................5
SECTION 4. Vacancies............................................................5
SECTION 5. Removal by Stockholders..............................................5
SECTION 6. Resignation of Directors.............................................5
SECTION 7. Compensation.........................................................5
ARTICLE IV MEETINGS OF DIRECTORS................................................5
SECTION 1. Time and Place of Meetings of New Board..............................5
SECTION 2. Regular Meetings.....................................................6
SECTION 3. Presiding Officer....................................................6
SECTION 4. Votes................................................................6
SECTION 5. Quorum and Adjournment...............................................6
SECTION 6. Action Without Meeting...............................................7
SECTION 7. Limitation of Liability..............................................7
SECTION 8. Participation via Communications Equipment...........................7
SECTION 9. Minutes..............................................................7
ARTICLE V COMMITTEES OF DIRECTORS...............................................7
SECTION 1. Executive Committee..................................................7
SECTION 2. Audit Committee......................................................9
SECTION 3. Other Committees.....................................................9
SECTION 4. Term of Office......................................................10
i
</Table>
<Page>
TABLE OF CONTENTS
(continued)
<Table>
PAGE
ARTICLE VI NOTICES.............................................................10
SECTION 1. How Made............................................................10
SECTION 2. Waiver of Notice....................................................10
ARTICLE VII OFFICERS...........................................................11
SECTION 1. Officers............................................................11
SECTION 2. How Elected.........................................................11
SECTION 3. Tenure..............................................................11
SECTION 4. Removal.............................................................11
SECTION 5. Resignation.........................................................11
SECTION 6. Compensation........................................................11
SECTION 7. Vacancies...........................................................11
SECTION 8. Chairman of the Board...............................................11
SECTION 9. President...........................................................12
SECTION 10. Executive Vice Presidents and Vice Presidents......................12
SECTION 11. Secretary..........................................................12
SECTION 12. Assistant Secretaries..............................................12
SECTION 13. Treasurer..........................................................12
SECTION 14. Assistant Treasurers...............................................13
SECTION 15. Controller.........................................................13
SECTION 16. Assistant Controllers..............................................13
SECTION 17. Subordinate Officers...............................................13
ARTICLE VIII CERTIFICATES OF STOCK.............................................13
SECTION 1. Form and Execution of Certificates..................................13
SECTION 2. Transfer of Shares..................................................14
SECTION 3. Closing of Transfer Books...........................................14
SECTION 4. Fixing Date for Determination of Stockholders of Record.............15
SECTION 5. Lost or Destroyed Certificates......................................15
SECTION 6. Uncertificated Shares...............................................16
SECTION 7. Stock Ledger........................................................16
SECTION 8. Close Corporation...................................................16
ARTICLE IX EXECUTION OF DOCUMENTS..............................................16
SECTION 1. Execution of Checks, Notes, etc.....................................16
SECTION 2. Execution of Contracts, Assignments, etc............................17
SECTION 3. Execution of Proxies................................................17
ARTICLE X INSPECTION OF BOOKS..................................................17
ii
</Table>
<Page>
TABLE OF CONTENTS
(continued)
<Table>
PAGE
ARTICLE XI FISCAL YEAR........................................................17
ARTICLE XII AMENDMENTS........................................................17
ARTICLE XIII INDEMNIFICATION..................................................18
SECTION 1. Indemnification of Officers, Directors and Others..................18
SECTION 2. Authorization......................................................19
SECTION 3. Expense Advance....................................................20
SECTION 4. Nonexclusivity.....................................................20
SECTION 5. Insurance..........................................................20
SECTION 6. "The Corporation"..................................................20
SECTION 7. Other Indemnification..............................................20
SECTION 8. Other Definitions..................................................21
SECTION 9. Continuation of Indemnification....................................21
SECTION 10. Amendment or Repeal...............................................21
ARTICLE XIV MISCELLANEOUS.....................................................21
SECTION 1. Annual Statements..................................................21
SECTION 2. Checks, etc........................................................21
SECTION 3. Licenses and Permits...............................................21
iii
</Table>
<Page>
BROOKS PHARMACY, INC.
(a Delaware Corporation)
----------
BY-LAWS
----------
ARTICLE I
OFFICES AND SEAL
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
shall be located in Wilmington, County of New Castle, State of Delaware, and the
name of the resident agent in charge thereof shall be Corporation Service
Company.
SECTION 2. 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 appoint or the business of the Corporation may
require.
SECTION 3. SEAL. The seal of the Corporation shall, subject to
alteration by the Board of Directors, consist of a flat-faced circular die with
the word "Delaware", together with the name of the Corporation and the year of
incorporation, cut or engraved thereon. The seal may be used by causing it, or a
facsimile thereof to be affixed, impressed, reproduced or used in any other
manner permitted by law.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETING. Meetings of the stockholders shall be
held either within or without the State of Delaware at such place as the Board
of Directors may fix from time to time, or if the Board of Directors does not
fix the place, by the person or group calling the meeting, and as stated in the
notice of meeting.
SECTION 2. ANNUAL MEETING. Beginning with the first calendar year
after the year of incorporation, an annual meeting of the stockholders shall be
held on the last Friday of September each year (or if that be a legal holiday in
the place where the meeting is to be held, on the next succeeding business day).
The purposes for which the annual meeting is to be held in addition to those
prescribed by law, the Certificate of Incorporation or these By-Laws, shall be
specified by the director(s) or the President. If no annual meeting is held in
accordance with this Section, a special meeting may be held in lieu thereof, and
any action taken at such a meeting shall have the same effect as if taken by the
annual meeting.
SECTION 3. SPECIAL MEETINGS. Special meetings of the stockholders for
any purpose or purposes may be called by the Chairman of the Board of Directors,
if there be one, the President,
<Page>
and special meetings shall be called by the President or the Secretary at the
request in writing of at least half of the Board of Directors or of holders
of ten percent (10%) or more of the shares entitled to vote at the meeting. Such
request of stockholders shall state the purpose or purposes of the proposed
meeting. The business transacted at any special meeting of the stockholders
shall be limited to the purpose or purposes stated in the notice of the meeting,
unless otherwise agreed by all stockholders present in person or by proxy and
entitled to vote at the meeting..
SECTION 4. NOTICE. Written or printed notice of every meeting of
stockholders, annual or special, stating the hour, date and place thereof, and
the purpose or purposes in general terms for which the meeting is called shall,
not less than ten (10) days, or such longer period as shall be provided by law,
the Certificate of Incorporation, these By-Laws, or otherwise, and not more than
sixty (60) days before such meeting. Such notice shall be given in the manner
set forth in Article VI.
SECTION 5. PRESIDING OFFICER. The President shall preside at all
meetings of the stockholders, unless the Board of Directors shall have elected a
person other than the President to serve as Chairman; in the absence of the
President, the Chairman of the Board, if any, shall preside. In the absence of
both the Chairman of the Board and the President, a presiding officer shall be
selected by vote of the holders of a majority of the shares of stock whose
holders are present in person or by proxy and entitled to vote at the meeting.
SECTION 6. QUORUM AND ADJOURNMENTS. Except as otherwise provided by
law or by the Certificate of Incorporation, the presence in person or by proxy
at any meeting of stockholders of the holders of a majority of the shares of the
capital stock of the Corporation issued and outstanding and entitled to vote
thereat, shall be requisite and shall constitute a quorum. If two or more
classes of stock are entitled to vote as separate classes upon any question,
then, in the case of each such class, a quorum for the consideration of such
question shall, except as otherwise provided by law or by the Certificate of
Incorporation, consist of a majority in interest of all stock of that class
issued, outstanding and entitled to vote. If a majority of the shares of capital
stock of the Corporation issued and outstanding and entitled to vote thereat or,
where a larger quorum is required, such quorum, shall not be represented at any
meeting of the stockholders regularly called, the holders of a majority of the
shares present or represented by proxy and entitled to vote thereat shall have
power to adjourn the meeting to another time, or to another time and place,
without notice other than announcement of adjournment at the meeting, and there
may be successive adjournments for like cause and in like manner until the
requisite amount of shares entitled to vote at such meeting shall be
represented; provided, however, that if the adjournment is for more than thirty
(30) days, notice of the hour, date and place of the adjourned meeting shall be
given to each stockholder entitled to vote thereat. Subject to the requirements
of law and the Certificate of Incorporation, on any issue on which two or more
classes of stock are entitled to vote separately, no adjournment shall be taken
with respect to any class for which a quorum is present unless the Chairman of
the meeting otherwise directs. At any meeting held to consider matters which
were subject to adjournment for want of a quorum at which the requisite amount
of shares entitled to vote thereat shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed.
- 2 -
<Page>
SECTION 7, VOTES; PROXIES. Except as otherwise provided in the
Certificate of Incorporation, at each meeting of stockholders, every stockholder
of record at the closing of the transfer books, if closed, or on the date set by
the Board of Directors for the determination of stockholders entitled to vote at
such meeting, shall have one vote for each share of stock entitled to vote which
is registered in such stockholder's name on the books of the Corporation, and,
in the election of directors, may vote cumulatively to the extent, if any, and
in the manner authorized in the Certificate of Incorporation.
At each such meeting every stockholder entitled to vote shall be
entitled to do so in person, by electronic means or by proxy appointed by an
instrument in writing or as otherwise permitted by law subscribed by such
stockholder and bearing a date not more than three (3) years prior to the
meeting in question, unless said instrument provides for a longer period during
which it is to remain in force. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or any interest in the Corporation generally. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing with the Secretary of the Corporation
an instrument in writing or as otherwise permitted by law revoking the proxy or
another duly executed proxy bearing a later date. No proxy be valid after 11
months from its date, unless otherwise provided therein.
Voting at meetings of stockholders need not be by written ballot and,
except as otherwise provided by law, need not be conducted by inspectors of
election unless so determined by the Chairman of the meeting or by the holders
of shares of stock having a majority of the votes which could be cast by the
holders of all outstanding shares of stock entitled to vote thereon which are
present in person or represented by proxy at such meeting. If it is required or
determined that inspectors of election be appointed, the Chairman shall appoint
two inspectors of election, who shall first take and subscribe an oath or
affirmation faithfully to execute the duties of inspectors at such meeting with
strict impartiality and according to the best of their ability. The inspectors
so appointed shall take charge of the polls and, after the balloting, shall make
a certificate of the result of the vote taken. No director or candidate for the
office of director shall be appointed as such inspector. At all meetings of the
stockholders, all questions relating to the qualification of voters shall be
decided by the presiding officer of the meeting.
At any meeting at which a quorum is present, a plurality of the votes
properly cast for election to fill any vacancy on the Board of Directors shall
be sufficient to elect a candidate to fill such vacancy, and a majority of the
votes properly cast upon any other question shall decide the question, except in
any case where a larger vote is required by law, the Certificate of
Incorporation, these By-Laws, or otherwise.
SECTION 8. ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted by the Delaware
General Corporation Law to be taken at any annual or special meeting of the
stockholders of the Corporation, may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not
- 3 -
<Page>
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted and shall be delivered to the Corporation by delivery to its
registered office in 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.
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 stockholders
to take action are 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.
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. In the event that the action which is consented
to is such as would have required the filing of a certificate under any section
of the Delaware General Corporation Law other than Section 228 thereof, if such
action had been voted on by stockholders at a meeting thereof, the certificate
filed under such other section shall state, in lieu of any statement required by
such section concerning any vote of stockholders, that written consent has been
given in accordance with Section 228 of the Delaware General Corporation Law,
and that written notice has been given as provided in such Section 228.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Corporation
shall be managed by or under the direction of its Board of Directors, which may
exercise all of the powers of the Corporation except such as are by law, the
Certificate of Incorporation, or these By-Laws conferred upon or reserved to the
stockholders.
SECTION 2. NUMBER AND ELECTION. The Board of Directors shall number
no less than one (1) nor greater than seven (7). Directors elected by a majority
vote, may nominate successor directors, unless only one director is in office.
Until the first meeting of the directors is held, the Board of Directors shall
consist of the persons named as such in the written consent of the Sole
Incorporator. Thereafter, and at such subsequent annual meeting of the
stockholders, the stockholders shall elect Directors and determine the number of
members of the Board of Directors.
At any time during any year, except as otherwise provided by law, the
Certificate of
- 4 -
<Page>
Incorporation, these By-Laws, or otherwise, the number of directors may be
increased or reduced, in each case by vote of a majority of the stock issued and
outstanding and present in person or represented by proxy and entitled to vote
for the election of directors.
SECTION 3. TERM OF OFFICE. Each director shall hold office until the
next annual meeting of stockholders, provided that if he or she is not
re-elected or if his or her successor is not elected thereat and there remains a
vacancy in the Board of Directors, he or she shall serve until his or her
successor is duly elected and qualified or until his or her earlier death or
resignation, subject to the right of the stockholders at any time to remove any
director or directors as provided in Section 4 of this Article. Directors need
not be stockholders of the Corporation.
SECTION 4. VACANCIES. If any vacancy shall occur among the directors,
or if the number of directors shall at any time be increased, the directors then
in office, although less than a quorum, by a majority vote may fill the
vacancies or newly-created directorships, or in the absence of any such
director, by the holders of stock of each class acting at special meeting of
stockholders. A director elected to fill a vacancy shall hold office during the
remainder of the term of the director he or she replaces.
SECTION 5. REMOVAL BY STOCKHOLDERS. Except as otherwise provided by
law, the Certificate of Incorporation or otherwise, the holders of record of the
capital stock of the Corporation entitled to vote for the election of directors
may, by a majority vote, remove any director or directors, with or without
cause, and, in their discretion, elect a new director or directors in place
thereof.
SECTION 6. RESIGNATION OF DIRECTORS. A Director may resign at any time
by giving written notice of his or her resignation to the Chairman of the Board
of Directors or the President. His or her resignation shall take effect at the
time received unless another time is specified in the notice.
SECTION 7. COMPENSATION. Directors shall receive compensation for
their services, as such, and for service on any Committee of the Board of
Directors, as fixed by resolution of the Board of Directors and for expenses of
attendance at each regular or special meeting of the Board or any Committee
thereof. Nothing in this Section shall be construed to preclude a director from
serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
MEETINGS OF DIRECTORS
SECTION 1. TIME AND PLACE OF MEETINGS OF NEW BOARD. The first meeting
of each newly elected Board of Directors shall be held at such time and place as
are fixed by the vote of the stockholders at the annual meeting, and no notice
of such meeting shall be necessary in order legally to constitute the meeting,
provided a quorum is present. If the stockholders fail to fix the time or place
of the newly elected Board of Directors, or if such meeting is not held at the
time
- 5 -
<Page>
and place so fixed by the stockholders, the meeting may be held at such time and
place as are specified in a notice given as hereinafter provided for special
meetings of the Board.
SECTION 2. REGULAR MEETINGS. Meetings of the Board of Directors shall
be held at such place, within or without the State of Delaware, as may from time
to time be fixed by resolution of the Board of Directors or by the Chairman of
the Board, if there be one, or by the President, and as may be specified in the
notice or waiver of notice of any meeting. Meetings may be held at any time upon
the call of the Chairman of the Board, if there be one, or the President or any
two (2) of the directors in office by oral, telegraphic, telex, telecopy or
other form of electronic transmission, or written notice, duly served or sent or
mailed to each director not less than twenty-four (24) hours before such
meeting, except that, if mailed, not less than seventy two (72) hours before
such meeting.
Meetings may be held at any time and place without notice if all the
directors are present and do not object to the holding of such meeting for lack
of proper notice or if those not present shall, in writing or by telegram,
telex, telecopy or other form of electronic transmission, waive notice thereof.
A regular meeting of the Board may be held without notice immediately following
the annual meeting of stockholders at the place where such meeting is held.
Regular meetings of the Board may also be held without notice at such time and
place as shall from time to time be determined by resolution of the Board.
Except as otherwise provided by law, the Certificate of Incorporation or
otherwise, neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors or any committee thereof
need be specified in any written waiver of notice.
Members of the Board of Directors or any committee thereof may
participate in a meeting of such Board or 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 participation in a meeting
pursuant to the foregoing provisions shall constitute presence in person at the
meeting.
SECTION 3. PRESIDING OFFICER. The Chairman of the Board, or if he or
she has not been elected, the President, shall preside at all meetings of the
Board of Directors. In the absence of the Chairman of the Board and the
President, a presiding officer shall be selected by a majority vote of the
members of the Board present at the meeting.
SECTION 4. VOTES. Except as otherwise provided by law, the Certificate
of Incorporation or otherwise, the vote 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.
SECTION 5. QUORUM AND ADJOURNMENT. Except as otherwise provided by
law, the Certificate of Incorporation or otherwise, a majority of the directors
shall constitute a quorum for the transaction of business. If at any meeting of
the Board there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time without notice other than announcement
of the adjournment at the meeting, and at such adjourned meeting at which a
quorum is present any business may be transacted which might have been
transacted at the meeting as originally noticed. The directors present at a
duly called or held meeting at which
- 6 -
<Page>
a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum,
unless a majority of present members object.
SECTION 6. ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee. Such consent shall be
treated as a vote adopted at a meeting for all purposes. Such consents may be
executed in one or more counterparts and not every Director or committee member
need sign the same counterpart.
SECTION 7. LIMITATION OF LIABILITY. No director shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director notwithstanding any provision of law imposing such liability;
provided, however, that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) for any transaction from which the director derived an improper personal
benefit.
SECTION 8. PARTICIPATION VIA COMMUNICATIONS EQUIPMENT. Directors may
participate in a meeting of the Board of Directors or of any. Committee of the
Board of Directors by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
and speak to each other, and such participation in the meeting shall constitute
presence in person at such meeting.
SECTION 9. MINUTES. Minutes shall be kept of all meetings of the Board
of Directors. If the Secretary of the Corporation is not present at the meeting,
the minutes shall be kept by a person designated by the Chairman of the meeting
and shall be filed with the Secretary. Minutes of meetings of a Committee shall
be distributed to the Board of Directors in accordance with resolutions
establishing such Committee.
ARTICLE V
COMMITTEES OF DIRECTORS
SECTION 1. EXECUTIVE COMMITTEE. The Board of Directors may, by
resolution passed by a majority of the whole Board, appoint an Executive
Committee of one (1) or more members, to serve during the pleasure of the Board,
to consist of such directors as the Board may from time to time designate. The
Board of Directors shall designate the Chairman of the Executive Committee.
(a) PROCEDURE. The Executive Committee shall, by a vote of a majority
of its members, fix its own times and places of meeting,
determine the number of its members constituting a quorum for the
transaction of business, and prescribe its
- 7 -
<Page>
own rules of procedure, no change in which shall be made save by
a majority vote of its members.
(b) RESPONSIBILITIES. During the intervals between the meetings of
the Board of Directors, except as otherwise provided by the Board
of Directors in establishing such Committee or otherwise, the
Executive Committee shall possess and may exercise all the powers
of the Board in the management and direction of the business and
affairs of the Corporation; provided, however, that the Executive
Committee shall not, except to the extent the Certificate of
Incorporation or the resolution providing for the issuance of
shares of stock adopted by the Board of Directors as provided in
Section 151(a) of the Delaware General Business Corporation Law,
have the power:
(i) to amend or authorize the amendment of the Certificate
of Incorporation or these By-Laws;
(ii) to authorize the issuance of stock;
(iii) to authorize the payment of any dividend;
(iv) to adopt an agreement of merger or consolidation of the
Corporation or to recommend to the stockholders the
sale, lease or exchange of all or substantially all the
property and business of the Corporation;
(v) to recommend to the stockholders a dissolution, or a
revocation of a dissolution, of the Corporation;
(vi) to adopt a certificate of ownership and merger pursuant
to Section 253 of the Delaware Business Corporation Law;
(vii) to fill a vacancy on the Board of Directors, remove a
director, fix the compensation of the directors for
serving on the Board of Directors, or amend or repeal
any resolution of the Board of Directors that is not by
its terms so amendable or repealable; or
(viii) to elect any of the principal officers or remove any of
the officers elected by the Board of Directors.
(c) REPORTS. The Executive Committee shall keep regular minutes of
its proceedings, and all action by the Executive Committee shall
be reported promptly to the Board of Directors. Such action shall
be subject to review, amendment and repeal by the Board, provided
that no rights of third parties shall be adversely affected by
such review, amendment or repeal.
(d) APPOINTMENT OF ADDITIONAL MEMBERS. In the absence or
disqualification of any member of the Executive Committee, the
member or members thereof present at
- 8 -
<Page>
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 place of any such
absent or disqualified member.
SECTION 2. AUDIT COMMITTEE. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint an Audit Committee of one (1)
or more members who shall not be officers or employees of the Corporation to
serve during the pleasure of the Board. The Board of Directors shall designate
the Chairman of the Audit Committee.
(a) PROCEDURE. The Audit Committee, by a vote of a majority of its
members, shall fix its own times and places of meeting, shall
determine the number of its members constituting a quorum for the
transaction of business, and shall prescribe its own rules of
procedure, no change in which shall be made save by a majority
vote of its members.
(b) RESPONSIBILITIES. The Audit Committee shall review the annual
financial statements of the Corporation prior to their submission
to the Board of Directors, shall consult with the Corporation's
independent auditors, and may examine and consider such other
matters in relation to the internal and external audit of the
Corporation's accounts and in relation to the financial affairs
of the Corporation and its accounts, including the selection and
retention of independent auditors, as the Audit Committee may, in
its discretion, determine to be desirable.
(c) REPORTS. The Audit Committee shall keep regular minutes of its
proceedings, and all action by the Audit Committee shall, from
time to time, be reported to the Board of Directors as it shall
direct. Such action shall be subject to review, amendment and
repeal by the Board, provided that no rights of third parties
shall be adversely affected by such review, amendment or repeal.
(d) APPOINTMENT OF ADDITIONAL MEMBERS. In the absence or
disqualification of any member of the Audit Committee, 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 place of any such absent or disqualified
member.
SECTION 3. OTHER COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board, at any time appoint one or more other
committees from and outside of its own number. Every such committee must include
at least one (1) member of the Board of Directors. The Board may from time to
time designate or alter, within the limits permitted by law, the Certificate of
Incorporation and this Article, if applicable, the duties, powers and number of
members of such other committees or change their membership, and may at any time
abolish such other committees or any of them.
(a) PROCEDURE. Each committee, appointed pursuant to this Section,
shall, by a vote of a majority of its members, fix its own times
and places of meeting, determine the number of its members
constituting a quorum for the transaction of business,
- 9 -
<Page>
and prescribe its own rules of procedure, no change in which
shall be made save by a majority vote of its members.
(b) RESPONSIBILITIES. Each committee, appointed pursuant to this
Section, shall exercise the powers assigned to it by the Board of
Directors in its discretion.
(c) REPORTS. Each committee appointed pursuant to this Section shall
keep regular minutes of proceedings, and all action by each such
committee shall, from time to time, be reported to the Board of
Directors as it shall direct. Such action shall be subject to
review, amendment and repeal by the Board, provided that no
rights of third parties shall be adversely affected by such
review, amendment or repeal.
(d) APPOINTMENT OF ADDITIONAL MEMBERS. In the absence or
disqualification of any member of each committee, appointed
pursuant to this Section, 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 (or, to the extent permitted, another
person) to act at the meeting in place of any such absent or
disqualified member.
SECTION 4. TERM OF OFFICE. Each member of a committee shall hold
office until the first meeting of the Board of Directors following the annual
meeting of stockholders (or until such other time as the Board of Directors may
determine, either in the vote establishing the committee or at the election of
such member or otherwise) and until his or her successor is elected and
qualified, or until he or she sooner dies, resigns, is removed, is replaced by
change of membership or becomes disqualified by ceasing to be a director (where
membership on the Board is required), or until the committee is sooner abolished
by the Board of Directors.
ARTICLE VI
NOTICES
SECTION 1. HOW MADE. Any notice required by law, the Certificate of
Incorporation, or these By-Laws to be given to stockholders or directors shall
be in writing. Such notice to a stockholder or director shall be either
presented to him personally, or left at his residence or usual place of
business, or transmitted by prepaid telegram, fax, or other mode of record
communication, or mailed postage prepaid, to him at his address as it appears on
the records of the Corporation. Notice by mail shall be deemed to have been
given on the day after its deposit in the United States mail. Notice by
telegram, fax, or other mode of record communication shall be deemed to have
been given at the time of dispatch. A notice of meeting need not state the
purpose of the meeting except to the extent required by law, the Articles of
Organization, or these By-Laws.
SECTION 2. WAIVER OF NOTICE. Whenever any notice of the time, place,
or purpose of any meeting of the stockholders, the Board of Directors, or a
Committee of the Board is required to be given by law, the Articles of
Organization or these By-Laws, a written waiver thereof, signed by a person
entitled to such notice either before, at, or after the meeting and filed with
- 10 -
<Page>
records of the meeting, or actual attendance in person at a meeting of the Board
or a Committee for the express purpose of objecting to the transacting of any
business because the meeting is not lawfully called or convened shall not
constitute a waiver of notice.
ARTICLE VII
OFFICERS
SECTION 1. OFFICERS. The Board of Directors shall elect a President, a
Secretary and a Treasurer, and, in their discretion, may elect a Chairman of the
Board, a Vice Chairman of the Board, a Controller, and one or more Executive
Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers
and Assistant Controllers as deemed necessary or appropriate. The powers and
duties of more than one office may be exercised and performed by the same
person.
SECTION 2. HOW ELECTED. The principal officers shall be elected by the
Board of Directors and the election shall be ratified by the shareholders. Other
officers shall be elected by the Board, or appointed, pursuant to authority
granted by the Board.
SECTION 3. TENURE. The tenure of all officers except for the
President, Treasurer, and Secretary shall be one year unless a shorter term is
specified in the vote choosing or appointing them. Other officers shall serve
until resignation or removal or until successors are elected or appointed.
SECTION 4. REMOVAL. Any officer may be removed by action of the Board
of Directors whenever, in the judgment of the Board, the best interests of the
Corporation shall be served thereby. Removal of an officer shall be without
prejudice to his contractual rights.
SECTION 5. RESIGNATION. Any officer may resign his office at any time
by giving written notice of his resignation to the Chairman of the Board or to
the President. His resignation shall take effect at the time received unless
another time is specified in the notice.
SECTION 6. COMPENSATION. The salaries or other compensation of all
officers elected by the Board of Directors shall be fixed from time to time by
the Board.
SECTION 7. VACANCIES. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors, at any regular or
special meeting.
SECTION 8. CHAIRMAN OF THE BOARD. A Chairman of the Board may be
elected from among the directors at the first meeting of the Board of Directors
following each annual meeting of the stockholders, by a vote of the majority of
the directors in office, to serve at the pleasure of the Board of Directors or
until his or her successor is elected. The Chairman of the Board shall, if
present, preside at all meetings of the Board and at all meetings of the
stockholders. He or she shall perform such other duties as from time to time may
be assigned to him or her by the Board. The Chairman of the Board shall be
eligible to serve as the officer of the Corporation designated as Chairman, as
President, or as any other officer of the Corporation.
- 11 -
<Page>
SECTION 9. PRESIDENT. The President shall be the chief executive
officer of the Corporation. Subject to the directions of the Board of Directors,
the President shall have and exercise direct charge of and general supervision
over the business and affairs of the Corporation and shall see that all orders
and resolutions of the Board of Directors are carried into effect. He or she
shall perform all duties incident to the office of the chief executive officer
of a corporation and other duties as from time to time may be assigned to him or
her by the Board of Directors. The President may but need not be a member of the
Board of Directors.
SECTION 10. EXECUTIVE VICE PRESIDENTS AND VICE PRESIDENTS. Each
Executive Vice President and Vice President if appointed by the Board of
Directors, shall in the absence or disability of the President, perform the
duties and exercise the powers of the President as assigned by the Board of
Directors and shall have and exercise such powers and shall perform such duties
as from time to time may be assigned to him or to her by the Board of Directors
or the President. The Executive Vice President, if one is appointed by the Board
of Directors, shall be Senior to any Vice Presidents elected by the Board of
Directors or appointed pursuant to authority granted by the Board of Directors.
SECTION 11. SECRETARY. The Secretary shall keep the minutes of all
meetings of the stockholders and of the Board of Directors in books provided for
the purpose; shall see that all notices are duly given in accordance with the
provisions of law and these By-Laws; the Secretary shall be custodian of the
records and of the corporate seal or seals of the Corporation; shall see that
the corporate seal is affixed to all documents the execution of which, on behalf
of the Corporation under its seal, is duly authorized, and, when the seal is so
affixed, he or she may attest the same; the Secretary may sign, with the
President, an Executive Vice President or a Vice President, certificates of
stock of the Corporation; and, in general, the Secretary shall perform all
duties incident to the office of Secretary of a corporation, and such other
duties as from time to time may be assigned to him or her by the Board of
Directors.
SECTION 12. ASSISTANT SECRETARIES. The Assistant Secretaries in order
of their seniority shall, in the absence or disability of the Secretary, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Secretary.
SECTION 13. TREASURER. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of the
Corporation, all monies or other valuable effects in such banks, trust companies
or other depositaries as shall, from time to time, be selected by the Board of
Directors; may endorse for collection on behalf of the Corporation checks, notes
and other obligations; may sign receipts and vouchers for payments made to the
Corporation; may sign checks of the Corporation, singly or jointly with another
person as the Board of Directors may authorize, and pay out and dispose of the
proceeds under the direction of the Board; the Treasurer shall render to the
President and to the Board of Directors, whenever requested, an account of the
financial condition of the Corporation; the Treasurer may sign, with the
President, or an Executive Vice President or a Vice President, certificates of
stock of the Corporation; and in general, shall perform all the duties incident
to the office of treasurer of a corporation, and
- 12 -
<Page>
such other duties as from time to time may be assigned by the Board of
Directors. Unless the Board of Directors shall otherwise determine, the
Treasurer shall be the chief financial officer of the Corporation.
SECTION 14. ASSISTANT TREASURERS. The Assistant Treasurers in order of
their seniority shall, in the absence or disability of the Treasurer, perform
the duties and exercise the powers of the Treasurer and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Treasurer.
SECTION 15. CONTROLLER. The Controller, if elected, shall be the chief
accounting officer of the Corporation and shall perform all duties incident to
the office of a controller of a corporation, and, in the absence of or
disability of the Treasurer or any Assistant Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as the
Board of Directors shall prescribe or as from time to time may be assigned by
the President or the Treasurer.
SECTION 16. ASSISTANT CONTROLLERS. The Assistant Controllers in order
of their seniority shall, in the absence or disability of the Controller,
perform the duties and exercise the powers of the Controller and shall perform
such other duties as the Board of Directors shall prescribe or as from time to
time may be assigned by the Controller.
SECTION 17. SUBORDINATE OFFICERS. The Board of Directors may appoint
such subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority and perform such duties as the Board
of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
ARTICLE VIII
CERTIFICATES OF STOCK
SECTION 1. FORM AND EXECUTION OF CERTIFICATES. The interest of each
stockholder of the Corporation shall be evidenced by a certificate or
certificates for shares of stock in such form as the Board of Directors may from
time to time prescribe. The certificates of stock of each class shall be
consecutively numbered and signed by the Chairman or Vice Chairman of the Board,
if any, the President, an Executive Vice President or a Vice President and by
the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer
of the Corporation, and may be countersigned and registered in such manner as
the Board of Directors may by resolution prescribe, and shall bear the corporate
seal or a printed or engraved facsimile thereof. Where any such certificate is
signed by a transfer agent or transfer clerk acting on behalf of the
Corporation, the signatures of any such Chairman, Vice Chairman, President,
Executive Vice President, Vice President, Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary may be facsimiles, engraved or printed. In case
any officer or officers, who shall have signed, or whose facsimile signature or
signatures shall have been used on, any such certificate or certificates, shall
cease to be such officer or officers, whether because of death, resignation or
otherwise, before such
- 13 -
<Page>
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be issued and delivered by the
Corporation as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers.
In case the corporate seal which has been affixed to, impressed on, or
reproduced in any such certificate or certificates shall cease to be the seal of
the Corporation before such certificate or certificates have been delivered by
the Corporation, such certificate or certificates may nevertheless be issued and
delivered by the Corporation as though the seal affixed thereto, impressed
thereon or reproduced therein had not ceased to be the seal of the Corporation.
Every certificate for shares of stock which are subject to any
restriction on transfer pursuant to law, the Certificate of Incorporation, these
By-Laws, or any agreement to which the Corporation is a party, shall have the
restriction noted conspicuously on the certificate, and shall also set forth, on
the face or back, either the full text of the restriction or a statement of the
existence of such restriction and (except if such restriction is imposed by law)
a statement that the Corporation will furnish a copy thereof to the holder of
such certificate upon written request and without charge.
Every certificate issued when the Corporation is authorized to issue
more than one class or series of stock shall set forth on its face or back
either the full text of the preferences, voting powers, qualifications, and
special and relative rights of the shares of each class and series authorized to
be issued, or a statement of the existence of such preferences, powers,
qualifications and rights, and a statement that the Corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
SECTION 2. TRANSFER OF SHARES. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by the holder
thereof in person or by his or her attorney lawfully constituted, upon surrender
for cancellation of certificates for the same number of shares, with an
assignment and power of transfer endorsed thereon or attached thereto, duly
executed, with such proof or guaranty of the authenticity of the signature as
the Corporation or its agents may reasonably require. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly 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,
save as expressly provided by law or by the Certificate of Incorporation. It
shall be the duty of each stockholder to notify the Corporation of his or her
post office address.
SECTION 3. CLOSING OF TRANSFER BOOKS. The stock transfer books of the
Corporation may, if deemed appropriate by the Board of Directors, be closed for
such length of time not exceeding fifty (50) days as the Board may determine,
preceding the date of any meeting of stockholders or the date for the payment of
any dividend or the date for the allotment of rights or the date when any
issuance, change, conversion or exchange of capital stock shall go into effect,
during which time no transfer of stock on the books of the Corporation may be
made.
- 14 -
<Page>
SECTION 4. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD. 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, or to
express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or 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 by the Board of
directors and which record date: (a) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, the Certificate of
Incorporation or otherwise, not be more than sixty (60) nor less than ten (10)
days before the date of such meeting; (b) in the case of determination of
stockholders entitled to express consent to corporate action in writing without
a meeting, shall, unless otherwise required by law, the Certificate of
Incorporation or otherwise, not be more than ten (10) days from the date upon
which the resolution fixing the record date is adopted by the Board of
Directors; and (c) in the case of any other action, shall not be more than sixty
(60) days prior to such other action. If no record date is fixed: (a) 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; (b) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting when no prior action of the Board of
Directors is required by 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 in accordance with applicable law, or, if prior action by the
Board of Directors is required by law, shall be at the close of business on the
day on which the Board of Directors adopts the resolution taking such prior
action; and (c) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto provided that if the resolution
relates to the payment of a dividend or allotment of rights such payment or
allotment shall be made not more than sixty (60) days after the date of the
adoption of the resolution. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
SECTION 5. LOST OR DESTROYED CERTIFICATES. In case of the loss or
destruction of any certificate of stock, a new certificate may be issued under
the following conditions:
(a) The owner of said certificate shall file with the Secretary or
any Assistant Secretary of the Corporation an affidavit giving
the facts in relation to the ownership, and in relation to the
loss or destruction of said certificate, stating its number and
the number of shares represented thereby; such affidavit shall be
in such form and contain such statements as shall satisfy the
President, any Executive Vice President, Vice President, the
Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer, that said certificate has been accidentally
destroyed or lost, and that a new certificate ought to be issued
in lieu thereof. Upon being so satisfied, any such officer may
require such owner to furnish the
- 15 -
<Page>
Corporation a bond in such penal sum and in such form as he or
she may deem advisable, and with a surety or sureties approved by
him or her, to indemnify and save harmless the Corporation from
any claim, loss, damage or liability which may be occasioned by
the issuance of a new certificate in lieu thereof. Upon such bond
being so filed, if so required, a new certificate for the same
number of shares shall be issued to the owner of the certificate
so lost or destroyed; and the transfer agent and registrar, if
any, of stock shall countersign and register such new certificate
upon receipt of a written order signed by any such officer, and
thereupon the Corporation will save harmless said transfer agent
and registrar in the premises. In case of the surrender of the
original certificate, in lieu of which a new certificate has been
issued, or the surrender of such new certificate, for
cancellation, the bond of indemnity given as a condition of the
issue of such new certificate may be surrendered; or
(b) The Board of Directors of the Corporation may by resolution
authorize and direct any transfer agent or registrar of stock of
the Corporation to issue and register respectively from time to
time without further action or approval by or on behalf of the
Corporation new certificates of stock to replace certificates
reported lost, stolen or destroyed upon receipt of an affidavit
of loss and bond of indemnity in form and amount and with surety
satisfactory to such transfer agent or registrar in each instance
or upon such terms and conditions as the Board of Directors may
determine.
SECTION 6. UNCERTIFICATED SHARES. The Board of Directors of the
Corporation may by resolution provide that one or more of any or all classes or
series of the stock of the Corporation shall be uncertificated shares, subject
to the provisions of Section 158 of the Delaware General Corporation Law.
SECTION 7. STOCK LEDGER. The Corporation shall maintain in its
principal office for the transaction of business an original or duplicate stock
ledger containing the names and addresses of all stockholders and the number of
shares of each class held by each stockholder. The stock ledger may be in
written form or any other form capable of being converted into written form
within a reasonable time for visual inspection.
SECTION 8. CLOSE CORPORATION. There shall not be more than thirty
shareholders. The Corporation shall make no offering of any of its stock of any
class which would constitute a public offering within the meaning of the United
States Securities Act of 1933, as amended.
ARTICLE IX
EXECUTION OF DOCUMENTS
SECTION 1. EXECUTION OF CHECKS, NOTES, ETC. All checks and drafts on
the Corporation's bank accounts and all bills of exchange and promissory notes,
and all acceptances, obligations and other instruments for the payment of money,
shall be signed by such officer or
- 16 -
<Page>
officers, or agent or agents, as shall be thereunto authorized from time to time
by the Board of Directors, which may in its discretion authorize any such
signatures to be facsimile.
SECTION 2. EXECUTION OF CONTRACTS, ASSIGNMENTS, ETC. Unless the Board
of Directors shall have otherwise provided generally or in a specific instance,
all contracts, agreements, endorsements, assignments, transfers, stock powers,
or other instruments shall be signed by the President, any Executive Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. The Board of Directors may, however, in
its discretion, require any or all such instruments to be signed by any two or
more of such officers, or may permit any or all of such instruments to be signed
by such other officer or officers, agent or agents, as it shall be thereunto
authorize from time to time.
SECTION 3. EXECUTION OF PROXIES. The President, any Executive Vice
President or any Vice President, and the Secretary, the Treasurer, any Assistant
Secretary or any Assistant Treasurer, or any other officer designated by the
Board of Directors, may sign on behalf of the Corporation proxies to vote upon
shares of stock of other companies standing in the name of the Corporation.
ARTICLE X
INSPECTION OF BOOKS
The Board of Directors shall determine from time to time whether, and
if allowed, to what extent and at what time and places and under what conditions
and regulations, the accounts and books of the Corporation (except such as may
by law be specifically open to inspection) or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as conferred
by the laws of the State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or of the stockholders of the Corporation.
ARTICLE XI
FISCAL YEAR
The fiscal year of the Corporation shall end on May 31st unless
otherwise fixed by resolution of the Board of Directors, and may be changed by
resolution of the Board of Directors if they deem it desirable.
ARTICLE XII
AMENDMENTS
These By-Laws may be altered, amended, changed or repealed and new
By-Laws adopted at a meeting of the stockholders called for that purpose by a
vote of not less than fifty one percent (51%) of the stockholders present or
represented and voting on such matters. The call for the meeting, or waiver
thereof, shall state the proposed alteration or amendment in
- 17 -
<Page>
general terms. Any by-law, whether made, altered, amended, changed or repealed
by the stockholders may be repealed, amended, changed, further amended, changed,
repealed or reinstated, as the case may be, as herein provided.
ARTICLE XIII
INDEMNIFICATION
INDEMNIFICATION
SECTION 1. Indemnification of Officers, Directors and Others.
(a) ACTIONS BY THIRD PARTIES. The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person
who was or is a party or is threatened to be made a party to, or
is otherwise involved in, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he or
she 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, partner, member, trustee,
employee or agent of another corporation, partnership, joint
venture, limited liability company, trust or other enterprise or
non-profit entity against all liability, losses, expenses
(including attorneys' fees), judgments, fines, and amounts paid
in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if such person
acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interest of the Corporation,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding against any such
person by judgment, order, settlement, conviction, or upon a plea
of NOLO CONTENDERE or its equivalent, shall not, of itself,
create a presumption that he or she did not act in good faith and
in a manner which he or she reasonably believed to be in or not
opposed to the best interest of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
(b) ACTIONS BY THE CORPORATION. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor
by reason of the fact that he or she 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,
partner, member, trustee, employee or agent of another
corporation, partnership, joint venture, limited liability
company, trust or other enterprise or non-profit entity against
expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection with the
- 18 -
<Page>
defense or settlement of such action or suit if such person acted
in good faith and in a manner he or she 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 a person shall have been
adjudged to be liable for negligence or misconduct in the
performance of his or her duty to the Corporation unless and only
to the extent that the Court of Chancery of the State of Delaware
or the court in which such action or suit was brought shall
determine upon application that despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery of the State of Delaware or
such other court shall deem proper.
(c) INDEMNIFICATION FOR EXPENSES. To the extent that any present or
former director or officer of this Corporation has been
successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in subsections (a) or (b) of this
Section 1, or in defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her
in connection with such defense.
(d) LIMITATION ON INDEMNIFICATION. No indemnification provided
hereunder shall cover liabilities or expenses in connection with
any matter which shall be disposed of through a compromise
payment by such Director, officer, employee or agent, pursuant to
the consent decree or otherwise, unless such compromise shall
first be approved as in the best interests of the Corporation (a)
by a vote of Directors in which no interested Director
participates, or (b) by a vote or the written approval of the
holders of a majority of the outstanding stock at the time having
the right to vote for Directors, not counting as outstanding any
stock owned by any interested Director, officer, employee or
agent of the Corporation and may include payment by the
Corporation of expenses incurred in defending a civil or criminal
action or proceeding in advance of the final disposition of such
action or proceeding; upon receipt of an agreement by the person
indemnified, to repay such payment if he shall be finally
adjudicated to be not entitled to such indemnification.
SECTION 2. AUTHORIZATION. Any indemnification under subsection (a) or
(b) of Section 1 of this Article XIII (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the present or former director, officer, partner,
member, trustee, employee or agent is proper in the circumstances because such
person has met the applicable standard of conduct set forth in subsection (a) or
(b), as the case may be. Such determination shall be made, with respect to a
person who is a director or officer of the Corporation at the time of such
determination: (i) by a majority vote of the directors who were not parties to
such action, suit or proceeding, even though less than a quorum, or (ii) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (iii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (iv)
by the stockholders.
- 19 -
<Page>
SECTION 3. EXPENSE ADVANCE. Expenses (including attorneys' fees)
incurred by a present or former officer or director of the Corporation in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding, as authorized in one of the manners provided in
Section 2 of this Article XIII, upon receipt of an undertaking by or on behalf
of such person to repay such amount if it shall ultimately be determined that he
or she is not entitled to be indemnified by the Corporation as authorized in
this Article XIII. Such expenses (including attorneys' fees) incurred by other
employees or agents of the Corporation may be so paid upon such terms and
conditions, if any, as the Corporation deems appropriate.
SECTION 4. NONEXCLUSIVITY. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other Sections 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 statute,
by-law, 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, and shall continue as to a person who has ceased to
be a director, officer, partner, member, trustee, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
SECTION 5. INSURANCE. The Corporation shall have power to 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, partner, member, trustee, employee or agent
of another corporation, partnership, joint venture, limited liability company,
trust or other enterprise or non-profit entity against any liability asserted
against and incurred by him or her in any such capacity, or arising out of his
or her status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Article or Section 145 of the Delaware General Corporation Law.
SECTION 6. "THE CORPORATION". For the purposes of this Article,
references to "the Corporation" shall include the resulting corporation and, to
the extent that the Board of Directors of the resulting corporation so decides,
all constituent corporations (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 a constituent corporation or is or was
serving at the request of such constituent corporation as director, officer,
partner, member, trustee, employee or agent of another corporation, partnership,
joint venture, limited liability company, trust or other enterprise or
non-profit entity shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation if its separate
existence had continued.
SECTION 7. OTHER INDEMNIFICATION. The Corporation's obligation, if
any, to indemnify any person who was or is serving at its request as a director,
trustee, partner, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or non-profit entity shall
be reduced by any amount such person may collect as indemnification from such
- 20 -
<Page>
other corporation, partnership, joint venture, trust or other enterprise or
non-profit entity or from insurance.
SECTION 8. OTHER DEFINITIONS. For purposes of this Article, 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, trustee, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, trustee, 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 or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article.
SECTION 9. CONTINUATION OF INDEMNIFICATION. 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 a director, trustee, partner, officer, employee or agent
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
SECTION 10. AMENDMENT OR REPEAL. Neither the amendment nor repeal of
this Article nor the adoption of any provision of these By-Laws inconsistent
with this Article shall reduce, eliminate or adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the effectiveness of such amendment, repeal or adoption.
ARTICLE XIV
MISCELLANEOUS
SECTION 1. ANNUAL STATEMENTS. The Board of Directors shall prepare or
cause to be prepared full and correct statements of the affairs of the
Corporation for each fiscal year, including a balance sheet and a financial
statement of operations for that fiscal year, and shall present such statements
at the next annual meeting of the stockholders held in the next fiscal year.
SECTION 2. CHECKS, ETC. All checks, drafts, orders for the payment of
money, notes and other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers or other employee or
employees as may from time to time be designated by the Board of Directors.
SECTION 3. LICENSES AND PERMITS. All applications for permits,
licenses, registrations, qualifications, and other rights directed to any
department of agency of the government of the United States or of any state,
district, or municipality thereby may be signed by the President or by such
other officers as the Board of Directors may from time to time designate.
- 21 -