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Exhibit 3.3
BY-LAWS
OF
ADVANCED LIFE SCIENCES HOLDINGS, INC.,
a Delaware corporation
ARTICLE I
OFFICES
Section 1.1 REGISTERED OFFICE. The registered office of the
Corporation in the State of Delaware shall be located at 1209 Orange Street,
Wilmington, Delaware, County of New Castle. The name of the Corporation's
registered agent at such address shall be The Corporation Trust Company.
Section 1.2 OTHER OFFICES. The Corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
STOCKHOLDERS
Section 2.1 ANNUAL MEETINGS. An annual meeting of stockholders
shall be held each year for the election of directors at such date, time and
place either within or without the State of Delaware as shall be designated
by the Board of Directors. At an annual meeting of the stockholders, only
such business shall be conducted as shall have been brought before the
meeting (i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the Corporation who complies with the notice procedures set
forth in this Article II, Section 2.1. For business to be properly brought
before an annual meeting by a stockholder, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the ninetieth (90th) day
nor earlier than the close of business on the one hundred twentieth (120th)
day prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
advanced more than thirty (30) days after the anniversary of the preceding
year's annual meeting, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the one hundred twentieth
(120th) day prior to such annual meeting and not later than the close of
business on the later of the ninetieth (90th) day prior to such annual
meeting or the tenth (10th) day following the day of which public
announcement of the date of such meeting is first made. In no event shall the
public announcement of an adjournment of an annual meeting commence a new
time period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth: (A) as to each person whom the
stockholder proposed to nominate for election or reelection as a director, all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or
is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, and Rule 14a-4(d) thereunder
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (B) as to
any other business that the stockholder proposes to bring before the meeting,
a brief description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial owner, if
any, on whose behalf the proposal is made; and (C) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address of such stockholder,
as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, and
(iii) whether either such stockholder or beneficial owner intends to deliver
a proxy statement and form of proxy to holders of, in the case of the
proposal, at least the percentage of the Corporation's voting shares required
under applicable law to carry the proposal or, in the case of a nomination or
nominations, a sufficient number of holders of the corporation's voting
shares to elect such nominee or nominees.
Section 2.2 SPECIAL MEETINGS. Special meetings of stockholders
may be called only by the Chairman of the Board or by the Board of Directors
pursuant to a resolution. Each special meeting shall be held at such date,
time and place either within or without the State of Delaware as shall be
designated by the person or persons calling such meeting at least ten days
prior to such meeting.
Section 2.3 NOTICE OF MEETING. Unless otherwise provided by law,
whenever stockholders are required or permitted to take any action at a meeting,
a written notice of the meeting shall be given which shall state the date, time
and place of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Unless otherwise provided by law, the
written notice of any meeting shall be given not less than ten nor more than
sixty days before the date of the meeting to each stockholder entitled to vote
at the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting.
Section 2.4 ADJOURNMENTS. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the
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adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 2.5 QUORUM. Unless otherwise provided by law or the
certificate of incorporation, at each meeting of stockholders, the presence in
person or representation by proxy of the holders of a majority of the
outstanding shares of each class of capital stock entitled to vote at the
meeting shall constitute a quorum for the transaction of business. For purposes
of the foregoing, two or more classes or series of capital stock shall be
considered a single class if the holders thereof are entitled to vote together
as a single class at the meeting. In the absence of a quorum, the stockholders
so present and represented may, by vote of the holders of a majority of the
shares of capital stock of the Corporation so present and represented, adjourn
the meeting from time to time until a quorum shall attend, and the provisions of
Section 2.4 of these by-laws shall apply to each such adjournment. Shares of its
own capital stock belonging on the record date for the meeting to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not limit the
right of the Corporation to vote stock, including but not limited to its own
stock, held by it in a fiduciary capacity.
Section 2.6 ORGANIZATION. Meetings of stockholders shall be
presided over by the Chairman, if any, or in his absence by the Vice Chairman,
if any, or in his absence by the President, or in the absence of the foregoing
persons by a chairman designated by the Board of Directors, or in the absence of
such designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.7 VOTING; PROXIES. Unless otherwise provided by the
certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of capital stock
held by him which has voting power on the subject matter submitted to a vote at
the meeting. Each stockholder entitled to vote at a meeting of stockholders or
to express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act for him by proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. 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
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary
before the proxy is voted. Unless otherwise required by law, voting of
stockholders for the election of directors need not be by written ballot. Voting
of stockholders for all other matters need not be by written ballot unless so
determined at a stockholders meeting by the vote of the holders of a majority of
the outstanding shares of each class of capital sock present in person or
represented by proxy at the meeting and entitled to vote on the subject matter
submitted to a vote at the meeting. Unless otherwise provided by law or the
certificate of incorporation, the vote of the holders of a majority of the
shares of capital stock of the Corporation present in person or represented by
proxy at a meeting at which a quorum is present and entitled to vote on the
subject matter submitted to a vote at the meeting shall be the act of the
stockholders.
Section 2.8 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, in advance, a record date, which shall not be
more
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than sixty nor less than ten days before the date of such meeting, more
than ten days after the date upon which the resolution fixing the record date
with respect to the taking of corporate action by written consent without a
meeting is adopted by the Board of Directors, nor more than sixty days prior to
any 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 by the Board of Directors is
necessary, shall be the day on which the first written consent is expressed; (c)
the record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when prior action by the Board of
Directors is required, shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action; and (d) 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. 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 2.9 LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Secretary
shall make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
Section 2.10 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless
otherwise provided by the certificate of incorporation, any action required by
law 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 in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. 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.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 POWERS; NUMBER; QUALIFICATIONS. Unless otherwise
provided by law or the certificate of incorporation, the business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors. Unless otherwise provided by the certificate of incorporation, the
Board of Directors shall consist of such number of directors as the Board of
Directors shall from time to time designate. Unless otherwise provided by the
certificate of incorporation, directors need not be stockholders.
Section 3.2 ELECTION; TERM OF OFFICE; RESIGNATION; REMOVAL;
VACANCIES. Each director shall hold office until his successor is elected and
qualified or until his earlier death, resignation or removal. Any director may
resign at any time upon written notice to the Corporation directed to the Board
of
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Directors or the Secretary. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of
such resignation shall be necessary to make it effective. Any director or the
entire Board of Directors may be removed from office at any time, but only for
cause, by the vote of the holders of a majority of shares of capital stock
then entitled to vote at an election of directors. Whenever the holders of
shares of any class or series of capital stock are entitled to elect one or
more directors by the provisions of the certificate of incorporation, the
provisions of the preceding sentence shall apply, in respect to the removal
without cause of a director or directors so elected, to the vote of the
holders of the outstanding shares of that class or series of capital stock
and not to the vote of the holders of the outstanding shares of capital stock
as a whole. Unless otherwise provided by the certificate of incorporation or
by these bylaws, vacancies and newly created directorships resulting from any
increase in the authorized number of directors or any other cause may be
filled by the vote of a majority of the directors then in office, although
less than a quorum, or by the vote of the sole remaining director. Whenever
the holders of shares of any class or classes of capital stock or series
thereof are entitled to elect one or more directors by the provisions of the
certificate of incorporation, vacancies and newly created directorships of
such class or classes or series thereof may be filled by the vote of a
majority of the directors elected by such class or classes or series thereof
then in office, or by the vote of the sole remaining director so elected.
Section 3.3 REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such dates, times and places either within or without
the State of Delaware as the Board of Directors shall from time to time
determine.
Section 3.4 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called at any time by the Chairman, if any, the Vice Chairman,
if any, the President or by any two members of the Board of Directors. Each
special meeting shall be held at such date, time and place either within or
without the State of Delaware as shall be fixed by the person or persons calling
the meeting.
Section 3.5 NOTICE OF MEETINGS. Written notice of each meeting of
the Board of Directors shall be given which shall state the date, time and place
of the meeting. The written notice of any meeting shall be given at least
twenty-four hours in advance of the meeting to each director. Notice may be
given by letter, telegram, telex, facsimile or email and shall be deemed to have
been given when deposited in the United States mail, delivered to the telegraph
company or transmitted by telex, facsimile or email, as the case may be.
Section 3.6 TELEPHONIC MEETINGS PERMITTED. Members of the Board of
Directors or any committee designated by the Board of Directors may participate
in a meeting of the Board of Directors or of such committee 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
the meeting pursuant to this by-law shall constitute presence in person at such
meeting.
Section 3.7 QUORUM; VOTE REQUIRED FOR ACTION. Unless otherwise
required by law, at each meeting of the Board of Directors, the presence of a
majority of the total number of directors shall constitute a quorum for the
transaction of business. The vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors,
unless the vote of a greater number is required by law or the certificate of
incorporation. In case at any meeting of the Board of Directors a quorum shall
not be present, the members of the Board of Directors present may by majority
vote to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall attend.
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Section 3.8 ORGANIZATION. Meetings of the Board of Directors shall
be presided over by the Chairman, if any, or in his absence by the Vice
Chairman, if any, or in his absence by the President, or in their absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting.
Section 3.9 ACTION BY DIRECTORS WITHOUT A MEETING. Unless otherwise
provided by the certificate of incorporation, any action required or permitted
to be taken at any meeting of the Board of Directors or any committee designated
by the Board of Directors may be taken without a meeting if all members of the
Board of Directors or of such committee consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors or such committee.
Section 3.10 COMPENSATION OF DIRECTORS. Unless otherwise provided by
the certificate of incorporation, the Board of Directors shall have the
authority to fix the compensation of directors, which compensation may include
the reimbursement of expenses incurred in connection with meetings of the Board
of Directors or a committee thereof.
ARTICLE IV
COMMITTEES
Section 4.1 COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member of such committee at any meeting thereof. In the absence or
disqualification of a 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 place of any such absent or disqualified
member.
Section 4.2 POWER OF COMMITTEES. Any committee designated by the
Board of Directors, to the extent provided in a resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation
and may authorize the seal of the Corporation to be affixed to all papers which
may require it; but no such committee shall have the power or authority to take
any action which by law may only be taken by the Board of Directors or to take
any action with reference to: amending the certificate of incorporation (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of Directors,
fix the designation and any of the preferences or rights of such shares relating
to dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the Corporation or fix the number of shares of any series
of stock or authorize the increase or decrease of the shares of any series),
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of dissolution, removing or
indemnifying directors or amending these by-laws; and, unless a resolution of
the Board of Directors expressly so provides, no such committee shall have the
power or authority to declare a dividend, to authorize the issuance of stock or
to adopt a certificate of ownership and merger pursuant to Section 253 of the
General Corporation Law of the State of Delaware.
Section 4.3 COMMITTEE CHARTER AND RULES. Unless the Board of
Directors otherwise provides, each committee designated by the Board of
Directors may adopt, amend and repeal a charter and rules for
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the conduct of its business. In the absence of a resolution by the Board of
Directors or a provision in the charter or rules of such committee to the
contrary, the presence of a majority of the total number of members of such
committee shall constitute a quorum for the transaction of business, and the
vote of a majority of the members present at a meeting at which a quorum is
present shall be the act of such committee.
ARTICLE V
OFFICERS
Section 5.1 OFFICERS; ELECTIONS. As soon as practicable after the
annual meeting of stockholders in each year, the Board of Directors shall elect
from its membership or outside thereof a President and a Secretary. The Board of
Directors may also elect from its membership a Chairman of the Board of
Directors (herein called "Chairman") and a Vice Chairman of the Board of
Directors (herein called "Vice Chairman"), and from its membership or outside
thereof a Chief Executive Officer, one or more Vice Presidents, one or more
Assistant Vice Presidents, one or more Assistant Secretaries, a Treasurer and
one or more Assistant Treasurers and such other officers or agents as it may
determine. Unless otherwise provided by the certificate of incorporation, any
number of offices may be held by the same person.
Section 5.2 TERM OF OFFICE; RESIGNATION; REMOVAL; VACANCIES. Except
as otherwise provided by the Board of Directors when electing any officer, each
officer shall hold office until the first meeting of the Board of Directors
after the annual meeting of stockholders next succeeding his election, or until
his successor is elected and qualified or until his earlier resignation or
removal. Any officer may resign at any time upon written notice to the
Corporation directed to the Board of Directors and the Secretary. Such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be necessary
to make it effective. The Board of Directors may remove any officer or agent
with or without cause at any time. Any such removal shall be without prejudice
to the contractual rights of such officer or agent, if any, with the
Corporation, but the election of an officer or agent shall not of itself create
any contractual rights. Any vacancy occurring in any office of the Corporation
by death, resignation, removal or otherwise may be filled for the unexpired
portion of the term by the Board of Directors.
Section 5.3 POWERS AND DUTIES. The officers of the Corporation
shall have such powers and duties in the management of the Corporation as shall
be stated in these by-laws or in a resolution of the Board of Directors which is
not inconsistent with these by-laws and, to the extent not so stated, as
generally pertain to their respective offices, subject to the control of the
Board of Directors. The Secretary shall have the duty to record in a book to be
kept for that purpose the proceedings of the meetings of the stockholders, the
Board of Directors and any committees designated by the Board of Directors.
Section 5.4 OTHER OFFICERS; SECURITY. The other officers, if any,
of the Corporation shall have such duties and powers as generally pertain to
their respective offices and such other duties and powers as the Board of
Directors shall from time to time delegate to each such officer. The Board of
Directors may require any officer, agent or employee to give security, by bond
or otherwise, for the faithful performance of his duties.
Section 5.5 COMPENSATION OF OFFICERS. The compensation of each
officer shall be fixed by the Board of Directors and no officer shall be
prevented from receiving such compensation by virtue of his also being a
director.
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ARTICLE VI
STOCK
Section 6.1 CERTIFICATES. Every holder of one or more shares of
capital stock of the Corporation shall be entitled to have a certificate signed
by or in the name of the Corporation by the Chairman or Vice Chairman, if any,
or the President or a Vice President, and by the Treasurer or an Assistant
Treasurer, if any, or the Secretary or an 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 by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
Section 6.2 LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE
OF NEW CERTIFICATES. The Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 7.1 RIGHT TO INDEMNIFICATION. Each person who was or is
made 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 (hereinafter a "proceeding"), by
reason of the fact that he is or was a director or officer 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 an employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such 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, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto), against
all reasonable expense, liability and loss (including, without limitation,
reasonable attorneys' fees, judgments, fines and amounts paid in settlement)
incurred or suffered by such indemnitee in connection therewith and such
indemnification shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators; PROVIDED, HOWEVER, that,
except as provided in Section 7.2 below with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such indemnitee
in connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification conferred in this
ARTICLE VII shall be a contract right and shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advancement of expenses");
PROVIDED, HOWEVER, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee in his capacity as a director
or officer (and not in any other capacity in which service was or is rendered by
such indemnitee) shall be made only upon delivery to the corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is
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no further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
ARTICLE VII or otherwise.
Section 7.2 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under
Section 7.1 above is not paid in full by the Corporation within sixty days after
a written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be thirty days, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (a) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that and
(b) in any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
the applicable standard of conduct set forth in the General Corporation Law of
the State of Delaware. 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 suit that indemnification of
the indemnitee is proper in the circumstances because the indemnitee 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 counsel or its stockholders) that the indemnitee has not
met such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this ARTICLE VII or otherwise shall be on the
Corporation.
Section 7.3 NON-EXCLUSIVITY OF RIGHTS UNDER THIS ARTICLE. The
rights to indemnification and to the advancement of expenses conferred in this
ARTICLE VII shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the certificate of
incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 7.4 INSURANCE. The Corporation may purchase and maintain
insurance on its own behalf or on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss asserted against him in any such capacity, or arising
out of his status as such, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
General Corporation Law of the State of Delaware.
Section 7.5 INDEMNIFICATION OF EMPLOYEES AND AGENTS. The
Corporation may, to the extent authorized at any time from time to time by the
Board of Directors, grant rights to indemnification and the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this ARTICLE VII with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
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ARTICLE VIII
MISCELLANEOUS
Section 8.1 FISCAL YEAR. The fiscal year of the Corporation
shall be determined by the Board of Directors.
Section 8.2 SEAL. The Corporation may have a corporate seal which
shall have the name of the Corporation inscribed thereon and shall be in such
form as may be approved from time to time by the Board of Directors.
Section 8.3 WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS, DIRECTORS
AND COMMITTEES. Whenever notice is required to be given by law, the certificate
of incorporation or these by-laws, a written waiver thereof, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Unless otherwise provided by the certificate of incorporation, neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors or members of a committee of directors
need be specified in any written waiver of notice.
Section 8.4 INTERESTED DIRECTORS, OFFICERS, QUORUM. No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose, if: (a) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (b) the material facts as to
his relationship or interest and as to the contract or transaction are disclosed
or are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (c) the contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the Board of Directors, a committee
thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Section 8.5 BOOKS AND RECORDS. The books and records of the
Corporation may be kept within or without the State of Delaware at such place or
places as may be designated from time to time by the Board of Directors. Any
records maintained by the Corporation in the regular course of its business,
including its stock ledger, books of account and minute books, may be kept on,
or be in the form of, punch cards, magnetic tape, photographs, microphotographs
or any other information storage device provided that the records so kept can be
converted into clearly legible form within a reasonable time. The Corporation
shall so convert any records so kept upon the request of any person entitled to
inspect the same.
Section 8.6 AMENDMENT OF BY-LAWS. These By-laws may be amended or
repealed, and new by-laws adopted, by the Board of Directors, but the
stockholders entitled to vote may adopt additional by-laws and may amend or
repeal any by-law whether or not adopted by them.
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