Exhibit 3.2
BY-LAWS
OF
BIO-VED, INC.
(a Delaware corporation)
ARTICLE I
Office
Section 1.1. Registered Office. The registered office of Bio-ved,
Inc. (the "Corporation") in the State of Delaware shall be located at 15 East
North Street, in the City of Dover, County of Kent, or at such other place as
the Board of Directors may at any time or from time to time designate.
Section 1.2. Registered Agent. The registered agent of the
Corporation in the State of Delaware at its registered office is United
Corporate Services, Inc., or such other person, firm or corporation as the Board
of Directors may at any time or from time to time designate.
Section 1.3. Other Offices. The Corporation may establish or
discontinue, from time to time, an office or offices and places of business
other than said registered office, within or without the State of Delaware, as
may be deemed proper for the conduct of the business of the Corporation.
ARTICLE II
Meetings of Stockholders
Section 2.1. Annual Meeting. The annual meeting of such holders of
capital stock ("Stock") as are entitled to vote thereat ("Annual Meeting of
Stockholders") shall be held for the election of directors and the transaction
of such other business as properly may come before it at such date and time as
the Board of Directors may determine.
Section 2.2. Special Meetings. In addition to such special meetings
as are provided for by law or by the Certificate of Incorporation, special
meetings of the stockholders of the Corporation may be called at any time by the
Board of Directors. Special meetings shall be called by means of a notice as
provided in Section 2.4 hereof.
Section 2.3. Place of Meetings. All meetings of the stockholders
shall be held at such place within or without the State of Delaware as shall be
designated by the Board of Directors.
Section 2.4. Notice of Meetings. 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 place, date and hour of the meeting and, in
case of a special meeting, the purpose or purposes for which the meeting is
called. The notice of each Annual Meeting of Stockholders shall identify each
matter intended to be acted upon at such meeting. If mailed, the notice shall
be addressed to each stockholder in a postage-prepaid envelope at his address as
it appears on the records of the Corpo-
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ration unless, prior to the time of mailing, the Secretary shall have received
from any such stockholder a written request that notices intended for him be
mailed to some other address. In such case the notice intended for such
stockholder shall be mailed to the address designated in such request. Notice
of each meeting of stockholders shall be delivered personally or mailed not less
than ten (10) nor more than sixty (60) days before the date fixed for the
meeting to each stockholder entitled to vote at such meeting.
Section 2.5. Waiver of Notice. Whenever notice is required to be
given, a written waiver thereof signed by the person entitled to notice whether
before or after the time stated therein for such meeting shall be deemed
equivalent to notice. Attendance of a person at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except as otherwise provided by
law. Neither the business to be transacted at nor the purpose of any regular or
special meeting of the stockholders need be specified in any written waiver of
notice.
Section 2.6. Organization of Meetings. The Chairman of the Board,
if any, shall act as chairman at all meetings of stockholders at which he is
present and, as such chairman, shall call such meetings of stockholders to order
and shall preside thereat. If the Chairman of the Board shall be absent from
any meeting of stockholders, the duties otherwise provided in this Section to be
performed by him at such meeting shall be performed at such meeting by the
President. If both the Chairman of the Board and the President shall be absent,
such duties shall be performed by a Vice
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President designated by the Chairman of the Board to preside at such meeting.
If no such officer is present at such meeting, any stockholder or the proxy of
any stockholder entitled to a vote at the meeting may call the meeting to order
and a chairman to preside thereat shall be elected by a majority of those
present and entitled to vote. The Secretary of the Corporation shall act as
secretary at all meetings of the stockholders but, in his absence, the chairman
of the meeting may appoint any person present to act as secretary of the
meeting.
Section 2.7. Stockholders Entitled to Vote. The Board of Directors
may fix a date not less than ten (10) nor more than sixty (60) days preceding
the date of any meeting of stockholders, or preceding the last day on which the
consent of stockholders may be effectively expressed for any purpose without a
meeting, as a record date for the determination of the stockholders entitled:
(a) to notice of, and to vote at, such meeting and any adjournment thereof; or
(b) to express such consent. In such case such stockholders of record on the
date so fixed, shall be entitled to notice of, and to vote at, such meeting and
any adjournment thereof or to express such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date is so fixed.
Section 2.8. List of Stockholders Entitled to Vote. The Secretary
shall prepare and make or cause to be prepared and made, at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at such meet-
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ing, arranged in alphabetical order and showing the address of each such
stockholder as it appears on the records of the Corporation and the number of
shares registered in the name of each such stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place specified in the notice of meeting within the
city where the meeting is to be held or, if not so specified, at the place where
the meeting is to be held, and a duplicate list shall be similarly open to
examination at the principal place of business of the Corporation. Such list
shall 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 2.9. Quorum and Adjournment. Except as otherwise provided
by law and in the Certificate of Incorporation, the holders of a majority of the
shares of Stock entitled to vote at the meeting shall constitute a quorum at
each meeting of the stockholders. Where more than one class or series of Stock
is entitled to vote at such a meeting, a majority of the shares of each such
class or series of Stock entitled to vote at such meeting shall constitute a
quorum at such meeting. In the absence of a quorum, the holders of a majority
of all such shares of Stock present in person or by proxy may adjourn any
meeting from time to time until a quorum shall attend. At any such adjourned
meeting at which a quorum may be present, any business may be transacted which
might have been transacted at the meeting as originally called. Notice
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of an adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 2.10. Order of Business. The order of business at all
meetings of stockholders shall be as determined by the chairman of the meeting.
Section 2.11. Vote of Stockholders. Except as otherwise permitted by
law, by the Certificate of Incorporation or elsewhere in these By-Laws, all
action by stockholders shall be taken at a meeting of the stockholders. Except
as otherwise provided in the Certificate of Incorporation, every stockholder of
record, as determined pursuant to Section 2.7 hereof, who is entitled to vote
shall at every meeting of the stockholders be entitled to one vote for each
share of Stock to participate in such vote held by such stockholder on the
record date. Every stockholder entitled to vote shall have the right to vote in
person or by proxy. Except as otherwise provided by law, no vote on any
question upon which a vote of the stockholders may be taken need be by ballot
unless the chairman of the meeting shall determine that it shall be by ballot or
the holders of a majority of the shares of Stock present in person or by proxy
and entitled to participate in such vote shall so demand. In a vote by ballot
each ballot shall state the number of shares voted and the name of the
stockholder or proxy voting. Unless otherwise provided by law or by the
Certificate of Incorporation, each director shall be elected by the vote of the
holders of a plurality, and all other questions shall be decided by the vote of
the holders of a majority, of the shares of Stock present
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in person or by proxy at the meeting and entitled to vote on the question.
Section 2.12. Proxies. Each stockholder entitled to vote at a
meeting of stockholders or to express consent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy. A proxy acting for any stockholder shall be duly appointed by an
instrument in writing subscribed by such stockholder.
Section 2.13. Consent of Stockholders in Lieu of Meeting. Whenever
the vote of stockholders at a meeting thereof is required or permitted to be
taken for or in connection with any corporate action by any provisions of the
General Corporation Law of the State of Delaware, the meeting, prior notice of
such meeting and the vote of the stockholders may be dispensed with and such
corporate action may be taken with the written consent of the stockholders of
Stock having not less than the minimum percentage of the total vote required by
statute for the proposed corporate action, unless the Certificate of
Incorporation or the By-Laws require a greater percentage for such action, in
which case the consent shall be that of the holders of such greater percentage;
provided, however, that prompt notice is given to all the stockholders who have
not consented of the taking of such corporate action without a meeting and by
less than unanimous written consent.
Section 2.14. Attendance at Meetings of Stockholders. Any
stockholder of the Corporation not entitled to notice of the
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meeting or to vote at such meeting shall nevertheless be entitled to attend any
meeting of stockholders of the Corporation.
ARTICLE III
Board of Directors
Section 3.1. Number, Election and Term of Office. The number of
directors which shall constitute the entire Board of Directors of the
Corporation shall be not less than three, the exact number to be fixed from time
to time by the Board of Directors pursuant to a resolution duly adopted by a
majority of the Board. Any decrease in the number of directors shall be
effective at the time of the next succeeding Annual Meeting of Stockholders
unless there shall be vacancies in the Board of Directors, in which case such
decrease may become effective at any time prior to the next succeeding Annual
Meeting of Stockholders to the extent of the number of such vacancies.
Directors need not be stockholders. Except as otherwise provided by statute or
these By-Laws, the directors (other than members of the initial Board of
Directors) shall be elected at the Annual Meeting of Stockholders. Each
director shall hold office until his successor shall have been elected and
qualified, or until his earlier resignation or removal.
Section 3.2. General Powers. The business, properties and affairs
of the Corporation shall be managed by or under the direction of the Board of
Directors which, without limiting the generality of the foregoing, shall have
the power to appoint the officers and agents of the Corporation, to fix and
alter the sal-
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aries of officers, employees, and agents of the Corporation, to grant general or
limited authority (including authority to delegate and sub-delegate) to
officers, employees, and agents of the Corporation, to make, execute, affix the
corporate seal to and deliver contracts and other instruments and documents
including bills, notes, checks or other instruments for the payment of money, in
the name and on behalf of the Corporation without specific authority in each
case and to appoint committees in addition to those provided for in Articles IV
and V hereof with such powers and duties as the Board of Directors may determine
and as provided by law. The membership of such committees shall consist of such
persons as are designated by the Board of Directors. In addition, the Board of
Directors may exercise all the powers of the Corporation and do all lawful acts
and things which are not reserved to the stockholders by law, by the Certificate
of Incorporation or by the By-Laws.
Section 3.3. Place of Meetings. Meetings of the Board of Directors
may be held at the principal place of business of the Corporation or at any
other place, within or without the State of Delaware, from time to time as
designated by the Board of Directors. Meetings of the Board of Directors may be
held, and one or more directors may attend any meeting of the Board of
Directors, by telephonic conference.
Section 3.4. Organization Meeting. The Board of Directors,
including its newly elected members, shall meet and organize without notice as
soon as practicable after each Annual Meeting of Stockholders at the place at
which such meeting of stockholders
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took place. If a quorum is not present, such organization meeting may be held
at any other time or place which may be specified for special meetings of the
Board of Directors in a notice given in the manner provided in Section 3.6
hereof or in a waiver of notice thereof.
Section 3.5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times as may be determined by resolution of the
Board of Directors. No notice shall be required for any regular meeting.
Except as otherwise provided by law, any business may be transacted at any
regular meeting of the Board of Directors.
Section 3.6. Special Meetings; Notice; and Waiver of Notice.
Special meetings of the Board of Directors shall be called by the Secretary or
an Assistant Secretary at the request of the Chairman of the Board or Vice
Chairman of the Board, if any, the President, a Vice President, or at the
request in writing of one or more of the whole Board of Directors stating the
purpose or purposes of such meeting. Notices of special meetings shall be
delivered personally to each director or shall be mailed to each director either
by overnight courier service or first-class mail addressed to him at his
residence or usual place of business or other address provided to the
Corporation, or shall be sent to him at any of such places by telegraph,
telecopy, or shall be communicated to him personally or by telephone, such that
such notice is received by each director not later than the three (3) days
before the day on which the meeting is to be held. Notice of any meeting
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of the Board of Directors shall not be required to be given to any director if
he shall sign a written waiver thereof either before or after the time stated
therein for such meeting or if he shall be present at the meeting and
participate in the business transacted thereat. Any and all business transacted
at any meeting of the Board of Directors shall be fully effective without any
notice thereof having been given if all the members shall be present thereat.
Unless limited by law, the Certificate of Incorporation, the By-Laws, or by the
terms of the notice thereof, any and all business may be transacted at any
special meeting without the notice thereof having so specifically enumerated the
matters to be acted upon.
Section 3.7. Organization. The Chairman of the Board, if any, shall
preside at all meetings of the Board of Directors at which he is present. If
the Chairman of the Board shall be absent from any meeting of the Board of
Directors, the duties otherwise provided in this Section 3.7 to be performed by
him at such meeting shall be performed by the President, if he is a director.
If the Chairman of the Board and the President, if he is a director, shall be
absent, such duties shall be performed by a director designated by the Chairman
of the Board to preside at such meeting. If no such officer or director is
present at such meeting, one of the directors present shall be chosen to preside
by a majority vote of the members of the Board of Directors present at such
meeting. The Secretary of the Corporation shall act as the secretary at all
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meetings of the Board of Directors and, in his absence, a temporary secretary
shall be appointed by the chairman of the meeting.
Section 3.8. Quorum and Adjournment. Except as otherwise provided
by these By-Laws and by the Certificate of Incorporation, at every meeting of
the Board of Directors a majority of the total number of directors shall
constitute a quorum. Except when the total number of directors is one, in no
event shall a quorum consist of less than two directors. Except as otherwise
provided by law, by the Certificate of Incorporation or elsewhere herein
(including without limitation in Sections 2.11, 3.12, 4.1, 4.8, 5.1, 6.3, or
10.2 hereof), the vote of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors. In the
absence of a quorum, any meeting may be adjourned from time to time until a
quorum is present. Notice of an adjourned meeting shall be required to be given
if notice was required to be given of the meeting as originally called.
Section 3.9. Voting. On any question on which the Board of
Directors shall vote, the names of those voting and their votes shall be entered
in the minutes of the meeting when any member of the Board of Directors present
at the meeting so requests.
Section 3.10. Acting Without a 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 of
Directors or of such committee,
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as the case may be, consent thereto in writing and such written consents are
filed with the minutes of such proceeding.
Section 3.11. Resignations. Any director may resign at any time by
written notice thereof to the Corporation. Any resignation shall be effective
immediately unless some other time is specified for it to take effect.
Acceptance of any resignation shall not be necessary to make it effective unless
such resignation is tendered subject to such acceptance.
Section 3.12. Filling of Vacancies. Unless otherwise provided by the
Certificate of Incorporation, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by the Board of Directors at
any meeting by affirmative vote of a majority of the remaining directors then in
office or by a sole remaining director though the remaining director or
directors be less than the quorum provided for in Section 3.8 hereof. Each
director so elected shall hold office until his successor shall have been
elected and qualified or until his earlier resignation or removal.
Section 3.13. Compensation. The Board of Directors shall have the
authority to fix the compensation, including without limitation, fees and
expenses, of directors for services to the Corporation in any capacity.
Section 3.14. Records. The Board of Directors shall keep minutes of
its acts and proceedings. Any action taken by the
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Board of Directors shall be entered into the minutes of the Board of Directors.
Each director shall be entitled to receive a copy of the minutes of the Board of
Directors at his request.
ARTICLE IV
Executive Committee
Section 4.1. Appointment and Powers. The Board of Directors may, by
resolution adopted by affirmative vote of a majority of the whole Board of
Directors, appoint an Executive Committee and the members thereof consisting of
one or more members which shall have and may exercise, during the intervals
between the meetings of the Board of Directors, all of the powers of the Board
of Directors in the management of the business, properties and affairs of the
Corporation; provided, however, that the foregoing is subject to the applicable
provisions of law and the Certificate of Incorporation and shall not be
construed as authorizing action by the Executive Committee with respect to any
action which is required to be taken by vote of a specified proportion of the
whole Board of Directors. So far as practicable, the members of the Executive
Committee shall be appointed at the organization meeting of the Board of
Directors in each year and, unless sooner discharged by affirmative vote of a
majority of the whole Board of Directors, shall hold office until the next
annual organization meeting of the Board of Directors and until their respective
successors are appointed or until they sooner die, resign or are removed. All
acts done and powers conferred by the Executive Com-
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mittee shall be deemed to be, and may be certified as being, done or conferred
under authority of the Board of Directors.
Section 4.2. Place of Meetings. Meetings of the Executive Committee
may be held at the principal place of business of the Corporation or at any
other place within or without the State of Delaware from time to time designated
by the Board of Directors or the Executive Committee. Meetings of the Executive
Committee may be held, and one or more members may attend any meeting of the
Executive Committee, by telephonic conference.
Section 4.3. Meetings; Notice; and Waiver of Notice. Regular
meetings of the Executive Committee shall be held at such times as may be
determined by resolution either of the Board of Directors or the Executive
Committee and no notice shall be required for any regular meeting. Special
meetings of the Executive Committee shall be called by the Secretary or an
Assistant Secretary upon the request of any member of the Executive Committee.
Notices of special meetings shall be delivered personally to each member or
shall be mailed to each member either by overnight courier service or
first-class mail addressed to him at his residence or usual place of business or
other address provided to the Corporation, or shall be sent to him at any of
such places by telegraph, telecopy, or shall be communicated to him personally
or by telephone, such that such notice is received by each member not later than
the business day before the date fixed for the meeting. Notice of any such
meeting shall not be required to be given to any member of the Executive
Committee if he shall sign a written waiver
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thereof either before or after the time stated therein for such meeting or if he
shall be present at the meeting and participate in the business transacted
thereat, and all business transacted at any meeting of the Executive Committee
shall be fully effective without any notice thereof having been given if all the
members shall be present thereat. Unless limited by law, the Certificate of
Incorporation, the By-Laws, or the terms of notice thereof, any and all business
may be transacted at any special meeting without the notice thereof having
specifically enumerated the matters to be acted upon.
Section 4.4. Organization. The Chairman of the Executive Committee
shall preside at all meetings of the Executive Committee at which he is
present. In the absence of the Chairman of the Executive Committee, the
Chairman of the Board, if he is a member of the Executive Committee, shall
preside at meetings of the Executive Committee at which he is present. In
the absence of the Chairman of the Executive Committee and the Chairman of
the Board, the President, if he is a member of the Executive Committee, shall
preside at meetings of the Executive Committee at which he is present. In
the absence of the Chairman of the Executive Committee, the Chairman of the
Board, the President, if he is a member of the Executive Committee, one of
the members present shall be chosen by the members of the Executive Committee
present to preside at such meeting. The Secretary of the Corporation shall
act as secretary at all meetings of the Executive Committee, if he is a
member thereof, and, in his absence, or if he is not a member thereof, a
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temporary secretary shall be appointed by the secretary of the meeting.
Section 4.5. Quorum and Adjournment. A majority of the members of
the Executive Committee shall constitute a quorum for the transaction of
business. The vote of a majority of those present at any meeting at which a
quorum is present shall be the act of the Executive Committee. In the absence
of a quorum, any meeting may be adjourned from time to time until a quorum is
present. No notice of any adjourned meeting shall be required to be given other
than by announcement at the meeting that is being adjourned.
Section 4.6. Voting. On any question on which the Executive
Committee shall vote, the names of those voting and their votes shall be entered
in the minutes of the meeting when any member of the Executive Committee present
at the meeting so requests.
Section 4.7. Records. The Executive Committee shall keep minutes of
its acts and proceedings which shall be submitted at the next regular meeting of
the Board of Directors. Any action taken by the Board of Directors with respect
thereto shall be entered in the minutes of the Board of Directors. Each
director shall be entitled to receive a copy of the minutes of the Executive
Committee at his request.
Section 4.8. Vacancies; Alternate Members; and Absences. In case of
any increase in the number of members of the Executive Committee or of any
vacancy created by death, resignation, disqualification or otherwise, the
additional member or members may be elected or the vacancy or vacancies
filled,as the case
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may be, by affirmative vote of a majority of the remaining Board of Directors or
by a sole remaining director, though the remaining director or directors be less
than the quorum provided for herein. By similar vote, the Board of Directors
may designate one or more directors as alternate members of the Executive
Committee who may replace any absent or disqualified member at any meeting of
the Executive Committee.
ARTICLE V
Other Committees of the Board
Section 5.1. Appointing Other Committees of the Board. The Board of
Directors may from time to time by resolution adopted by affirmative vote of a
majority of the whole Board of Directors appoint other committees of the Board
of Directors and the members thereof which shall have such powers of the Board
of Directors and such duties as the Board of Directors may properly determine
and as provided by law. Such other committee of the Board of Directors shall
consist of one or more directors. By similar vote, the Board of Directors may
designate one or more directors as alternate members of any such committee who
may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of any member of any such
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
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Section 5.2. Place and Time of Meetings; Notice; Waiver of Notice;
and Records. Meetings of such committees of the Board of Directors may be held
at any place, within or without the State of Delaware, from time to time
designated by the Board of Directors or the committee. Regular meetings of any
such committee shall be held at such times as may be determined by resolution of
the Board of Directors or the committee and no notice shall be required for any
regular meeting. A special meeting of any such committee shall be called by
resolution of the Board of Directors or by the Secretary or an Assistant
Secretary upon the request of any member of the committee. The provisions of
Section 4.3 hereof with respect to notice and waiver of notice of special
meetings of the Executive Committee shall also apply to all special meetings of
other committees of the Board of Directors. Any such committee may make rules
for holding and conducting its meetings and shall keep minutes of all meetings.
Meetings of any such committee may be held, and one or more members of such
committee may attend any meeting of such committee, by telephonic conference.
ARTICLE VI
The Officers
Section 6.1. Officers. The officers of the Corporation shall be a
Chairman of the Board, President, Secretary and Treasurer. The officers shall
be elected by the Board of Directors. The Board of Directors may also elect a
Vice Chairman of the Board, one or more Vice Presidents, one or more Executive
Vice
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Presidents, a Chairman of the Executive Committee, a Controller, one or more
Second Vice Presidents, Assistant Secretaries, Assistant Treasurers, Assistant
Controllers and such other officers and agents as in their judgment may be
necessary or desirable. The Chairman of the Board, the Vice Chairman of the
Board and the Chairman of the Executive Committee shall be selected from the
directors.
Section 6.2. Terms of Office and Vacancies. So far as is
practicable, all officers shall be appointed at the organization meeting of the
Board of Directors in each year and, except as otherwise provided in Sections
6.1, 6.3, and 6.4 hereof, shall hold office until the organization meeting of
the Board of Directors in the next subsequent year and until their respective
successors are elected and qualify or until they sooner die, retire, resign or
are removed. If any vacancy shall occur in any office, the Board of Directors
may elect a successor to fill such vacancy for the remainder of the term.
Section 6.3. Removal of Officers. Any officer may be removed at any
time, either with or without cause, by affirmative vote of a majority of the
whole Board of Directors at any regular meeting or at any special meeting called
for that purpose.
Section 6.4. Resignations. Any officer may resign at any time by
giving written notice thereof to the Corporation. Any resignation shall be
effective immediately unless some other date is specified for it to take
effect. Acceptance of any resignation
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shall not be necessary to make it effective unless such resignation is tendered
to such acceptance.
Section 6.5. Officers Holding More Than One Office. Any officer may
hold two or more offices so long as the duties of such offices can be
consistently performed by the same person.
Section 6.6. The Chairman of the Board. The Chairman of the Board
shall be a member of the Board of Directors, and, subject to the control of the
Board of Directors, shall have general and active charge, control and
supervision of the business, property and affairs of the Corporation. As
provided in Section 2.6 hereof, he shall act as chairman at all meetings of the
stockholders at which he is present; as provided in Section 3.7 hereof, he shall
preside at all meetings of the Board of Directors at which he is present; and as
provided in Section 4.4 hereof, in the absence of the Chairman of the Executive
Committee, he shall preside at all meetings of the Executive Committee at which
he is present, if he is a member thereof. He shall also perform such other
duties and shall have such other powers as may from time to time be assigned to
him by the Board of Directors.
Section 6.7. The Vice Chairman of the Board. The Vice Chairman of
the Board shall perform such duties and have such powers as may from time to
time be assigned to him by the Board of Directors.
Section 6.8. The President. The President shall perform such duties
and have such powers as may from time to time be assigned to him by the Board of
Directors. As provided in Section
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4.4 hereof, in the absence of the Chairman of the Executive Committee and the
Chairman of the Board, he shall preside at all meetings of the Executive
Committee at which he is present, if he is a member thereof. In the absence or
disability of the Chairman of the Board, the duties of the Chairman of the
Board, including those duties set forth in Sections 2.6, 3.7 and 4.4 hereof,
shall be performed and his powers may be exercised by the President. If neither
the President nor the Chairman of the Board is available, the duties of the
President shall be performed and his powers may be exercised by such member of
the Board of Directors as may be designated by the President and, failing such
designation or in the absence of the person so designated, by such member of the
Board of Directors as may be designated by the Chairman of the Board.
Section 6.9. The Vice Presidents. The Vice Presidents, including
the Executive Vice Presidents, shall perform such duties and have such powers as
may from time to time be assigned to them by the Board of Directors, the
Chairman of the Board or the President.
Section 6.10. The Secretary. The Secretary shall attend to the
giving of notice of each meeting of stockholders, the Board of Directors and
committees thereof and, as provided in Sections 2.6, 3.7, and 4.4 hereof, shall
act as secretary at each meeting of stockholders, directors and the Executive
Committee, if he is a member thereof. He shall keep minutes of all proceedings
at such meetings as well as of all proceedings at all meetings of such other
committees of the Board of Directors as any such committee
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shall direct him to so keep. The Secretary shall have charge of the corporate
seal and he or any officer of the Corporation shall have authority to attest to
any and all instruments or writings to which the same may be affixed. He shall
keep and account for all books, documents, papers and records of the Corporation
except those for which some other officer or agent is properly accountable. He
shall generally perform all the duties usually appertaining to the office of
secretary of a corporation. In the absence of the Secretary, such person as
shall be designated by the chairman of any meeting shall perform his duties.
Section 6.11. The Treasurer. The Treasurer shall have the care and
custody of all the funds of the Corporation and shall deposit such funds in such
banks or other depositories as the Board of Directors or any officer or officers
thereunto duly authorized by the Board of Directors shall from time to time
direct or approve. In the absence of a Controller, he shall perform all duties
appertaining to the office of Controller of the Corporation. He shall generally
perform all the duties usually appertaining to the office of a treasurer of a
corporation. When required by the Board of Directors, he shall give bonds for
the faithful discharge of his duties in such sums and with such sureties as the
Board of Directors shall approve. In the absence of the Treasurer, such person
as shall be designated by the Chairman of the Board or President shall perform
his duties.
Section 6.12. The Controller. The Controller shall prepare and have
the care and custody of the books of account of
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the Corporation. He shall keep a full and accurate account of all moneys
received and paid on account of the Corporation. He shall render a statement of
his accounts whenever the Board of Directors shall require. He shall generally
perform all the duties usually appertaining to the office of controller of a
corporation. When required by the Board of Directors, he shall give bonds for
the faithful discharge of his duties in such sums and with such sureties as the
Board of Directors shall approve.
Section 6.13. Additional Powers and Duties. In addition to the
foregoing specifically enumerated duties and powers, the several officers of the
Corporation shall perform such other duties and exercise such further powers as
the Board of Directors may from time to time determine or as may be assigned to
them by any superior officer.
ARTICLE VII
Stock and Transfers of Stock
Section 7.1. Stock Certificates. The Stock of the Corporation shall
be represented by certificates signed by two officers of the Corporation, one
the Chairman of the Board, the Vice Chairman of the Board, the President or a
Vice President and the other the Secretary or an Assistant Secretary. Any or
all of the signatures may be a facsimile. Such certificates shall be sealed
with the seal of the Corporation. Such seal may be a facsimile, engraved or
printed. In case any officer who has signed any such certificate shall have
ceased to be such officer before
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such certificate is issued, it may nevertheless be issued by the Corporation
with the same effect as if he were such officer at the date of issue.
Certificates representing the Stock of the Corporation shall be in such form as
shall be approved by the Board of Directors.
Section 7.2. Registration of Transfers of Stock. Registration of a
transfer of Stock shall be made on the books of the Corporation only upon
presentation by the person named in the certificate evidencing such stock, or by
an attorney lawfully authorized in writing, upon surrender and cancellation of
such certificate, with duly executed assignment and power of transfer endorsed
thereon or attached thereto, and with such proof of the authenticity of the
signature thereon as the Corporation or its agents may reasonably require.
Section 7.3. Lost Certificates. In case any certificate
representing Stock shall be lost, stolen or destroyed, the Board of Directors in
its discretion or any officer or officers thereunto duly authorized by the Board
of Directors may authorize the issuance of a substitute certificate in the place
of the certificate so lost, stolen or destroyed; provided, however, in each such
case the Corporation may require the owner of the lost, stolen or destroyed
certificate or his legal representative to give the Corporation evidence which
the Corporation determines in its discretion satisfactory of the loss, theft or
destruction of such certificate and of the ownership thereof and may also
require a bond sufficient to indemnify it against any claim that may be made
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against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 7.4. Determination of Stockholders of Record for Certain
Purposes. In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or 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 than sixty
(60) days prior to any such action.
ARTICLE VIII
Indemnification and Insurance
Section 8.1. The Corporation may indemnify, to the maximum extent
permitted by law, whomever the Corporation has the power to indemnify under the
provisions of the General Corporation Law of the State of Delaware, or
otherwise.
Section 8.2. Expenses incurred in defending or investigating a
threatened or pending action, suit or proceeding may be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article
VIII.
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Section 8.3. The indemnification and advancement of expenses
provided by or granted pursuant to this Article VIII shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-law, agreement, contract,
vote of stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise, both
as to action in his official capacity and as to action in another capacity while
holding such office.
Section 8.4. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation, 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 liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power or the obligation to indemnify him against such
liability under the provisions of this Article VIII.
Section 8.5. For purposes of this Article VIII, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
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employees or agents so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
Section 8.6. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article VIII, shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE IX
Miscellaneous
Section 9.1. Seal. The seal of the Corporation shall have inscribed
thereon the name of the Corporation, the year of its organization and the state
of its incorporation.
Section 9.2. Fiscal Year. The fiscal year of the Corporation shall
be determined by the Board of Directors.
Section 9.3. Signatures on Negotiable Instruments. All bills,
notes, checks or other instruments for the payment of money shall be signed or
countersigned by such officers or agents of Cor-
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poration and in such manner as from time to time may be prescribed by resolution
(whether general or special) of the Board of Directors or as may be prescribed
by any officer or officers or any officer and agent jointly thereunto duly
authorized by the Board of Directors.
Section 9.4. Books of the Corporation. Except as otherwise provided
by law, the books of the Corporation shall be kept at the principal place of
business of the Corporation and at such other locations as the Board of
Directors may from time to time determine.
Section 9.5. References to Gender. Whenever in the By-Laws
reference is made to the masculine gender, such reference shall where the
context so requires be deemed to include the feminine gender, and the By-Laws
shall be read accordingly.
Section 9.6. References to Articles and Section Numbers and to the
By-Laws and the Certificate of Incorporation. Whenever in the By-Laws reference
is made to an Article or Section number, such reference is to the number of an
Article or Section of the By-Laws. Whenever in the By-Laws reference is made to
the By-Laws, such reference is to these By-Laws of the Corporation as the same
may be from time to time amended. Whenever reference is made to the Certificate
of Incorporation, such reference is to the Certificate of Incorporation of the
Corporation as the same may from time to time be amended.
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ARTICLE X
Amendments
Section 10.1. Stockholders. Except as provided in these By-Laws or
in the Certificate of Incorporation, these By-Laws may be amended or repealed,
or new By-Laws may be adopted, at any annual or special meeting of the
stockholders, by a majority of the total votes of the stockholders, or when
stockholders are required to vote by class, by a majority of the appropriate
class, in person or represented by proxy and entitled to vote on such action;
provided, however, that the notice of such meeting shall have been given as
provided in these By-Laws, which notice shall mention that amendment or repeal
of these By-Laws, or the adoption of new By-Laws, is one of the purposes of such
meeting.
Section 10.2. Directors. Except as provided in the Certificate of
Incorporation or these By-Laws, these By-Laws may also be amended or repealed or
new By-Laws may be adopted by vote of two-thirds of all members of the Board at
any meeting thereof; provided, however, that notice of such meeting shall have
been given as provided in these By-Laws, which notice shall mention that
amendment or repeal of the By-Laws, or the adoption of new By-Laws, is one of
the purposes of such meeting. By-Laws adopted by the Board may be amended or
repealed by the stockholders as provided in Section 10.1 of this Article X.
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