Exhibit 3.4
BY-LAWS OF
SCRIPTGEN PHARMACEUTICALS, INC.
ARTICLE I
OFFICES
The registered office of Scriptgen Pharmaceuticals, Inc. (the
"Corporation") shall be in the City of Wilmington, County of New Castle, State
of Delaware, and the name of the resident agent in charge thereof is the
Corporation Service Company.
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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of stockholders for any
purpose shall be held at such place, within or without the State of Delaware, as
shall be designated by the Board of Directors and stated in the notice of the
meeting.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders of the
Corporation, for the election of Directors to succeed those whose terms expire
and for the transaction of such other business as may properly come before the
meeting, shall be held on such date and at such time as shall be fixed from time
to time by the Board of Directors and stated in the notice of the meeting.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders may be
called by the Chairman of the Board, if any, the President or by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
authorized Directors. Business transacted at any special meeting shall be
confined to the purpose or purposes stated in the notice of such meeting.
Section 4. NOTICE OF MEETING. Notice of the time and place of holding
each annual meeting and each special meeting of stockholders shall be given by
the Secretary, not less than ten nor more than sixty days before the meeting, to
each stockholder of record entitled to vote at such meeting. Notices of all
meetings of stockholders shall state the purposes for which the meetings are
held.
Section 5. LIST OF STOCKHOLDERS. 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, shall be prepared
by the Secretary, who shall have charge of the stock ledger. Such list shall be
open for said ten days to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, either at a place
specified in the notice of the meeting (which place shall be within the city
where the meeting is to be held) or, if no such other place has been so
specified, at the place where the meeting is to be held. Such 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 present at the meeting.
Section 6. QUORUM. At any meeting of stockholders, the holders of issued
and outstanding shares of capital stock which represent a majority of the votes
entitled to be cast thereat, present in person or represented by proxy, shall
constitute a quorum for the transaction of business. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time until a
quorum shall be present or represented. Unless the adjournment is for more than
thirty days or a new record date is fixed for the adjourned meeting, notice of
the adjourned meeting need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally called.
Section 7. VOTING. At any meeting of the stockholders, every stockholder
having the right to vote shall be entitled to vote in person, or by proxy
appointed by an instrument in writing subscribed by such stockholder and bearing
a date not more than eleven months prior to said meeting. When a quorum is
present at any meeting, a plurality of the votes properly cast for election to
the Board of Directors shall elect to the Board of Directors and a majority of
the votes properly cast on any question other than election to the Board of
Directors shall decide the question unless the question is one upon which by
express provision of law or of the certificate of incorporation or of these
By-laws a different vote is required, in which case such express provision shall
govern and control the decision of such question.
Section 8. FIXING OF RECORD DATE. (a) In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, 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 other than stockholder action by
written consent, the Board of Directors may fix a record date, which shall not
precede the date such record date is fixed and shall not be more than sixty nor
less than ten days before the date of such meeting, nor more than sixty days
prior to any such other action. If no record date is fixed, 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. The record date for any other purpose other than
stockholder
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action by written consent 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.
(b) In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than 10 days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors.
Section 9. NOMINATION OF DIRECTORS. Only persons who are nominated in
accordance with the procedures set forth in the By-laws shall be eligible to
serve as Directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders (a) by or
at the direction of the Board of Directors or (b) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 9, who shall be entitled to vote for the election
of directors at the meeting and who complies with the notice procedures set
forth in this Section 9. Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the Corporation not less than 60 days nor more than 90 days prior to
the meeting; provided, however, that in the event that less than 70 days' notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting or such public disclosure was made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a Director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of Directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a Director if elected); and (b) as to the
stockholder giving the notice (i) the name and address, as they appear on the
Corporation's books, of such stockholder and (ii) the class and number of shares
of the Corporation which are beneficially owned by such stockholder. At the
request of the Board of Directors, any person nominated by the Board of
Directors for election as a Director shall furnish to the Secretary of the
Corporation that information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee. No person shall be eligible to
serve as a Director of the Corporation unless nominated in accordance with the
procedures set forth in this By-law. The Chairman of the meeting shall, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the procedures prescribed by the By-laws, and if he or
she should so
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determine, he or she shall so declare to the meeting and the defective
nomination shall be disregarded. Notwithstanding the foregoing provisions of
this Section 9, a stockholder shall also comply with all applicable requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder with respect to the matters set forth in this Section.
Section 10. NOTICE OF BUSINESS. At any meeting of the stockholders, only
such business shall be conducted as shall have been brought before the meeting
(a) by or at the direction of the Board of Directors or (b) by any stockholder
of the Corporation who is a stockholder of record at the time of giving of the
notice provided for in this Section 10, who shall be entitled to vote at such
meeting and who complies with the notice procedures set forth in this Section
10. For business to be properly brought before a stockholder meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 60 days nor more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be received no later than the close
of business on the 10th day following the day on which such notice of the date
of the meeting was mailed or such public disclosure was made. A stockholder's
notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the meeting (a) a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (c) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder and (d) any material interest in the stockholder in such business.
Notwithstanding anything in the By-laws to the contrary, no business shall be
conducted at a stockholder meeting except in accordance with the procedures set
forth in this Section 10. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the provisions of the By-laws,
and if he or she should so determine, he or she shall so declare to the meeting
and any such business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing provisions of this Section 10, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this Section.
ARTICLE III
DIRECTORS
Section 1. NUMBER. The Corporation shall have one or more Directors, the
number of Directors to be determined from time to time by vote of a majority of
the Directors then in office. Except in connection with the election of
Directors at the
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annual meeting of stockholders, the number of Directors may be decreased only to
eliminate vacancies by reason of death, resignation or removal of one or more
Directors. No Director need be a stockholder.
Section 2. POWERS OF DIRECTORS. The affairs, property and business of the
Corporation shall be managed by the Board of Directors which may exercise all
such powers of the Corporation and do all such lawful acts and things as are not
by law or by the certificate of incorporation or these By-laws directed or
required to be exercised or done by the stockholders.
Section 3. VACANCIES. Vacancies and any newly created Directorships
resulting from any increase in the authorized number of Directors which occur
prior to an annual meeting of stockholders may only be filled by a majority of
the Directors then in office, although less than a quorum, or by a sole
Director, in each case elected by the particular class or series of stock
entitled to elect such Directors. When one or more Directors shall resign from
the Board, effective at a future date, a majority of the Directors then in
office, including those who have resigned, who were elected by the particular
class or series of stock entitled to elect such resigning Director or Directors
shall have the power to fill such vacancy or vacancies, the vote or action by
writing thereon to take effect when such resignation or resignations shall
become effective. The Directors shall have and may exercise all their powers
notwithstanding the existence of one or more vacancies in their number, subject
to any requirements of law or of the certificate of incorporation or of these
By-Laws as to the number of Directors required for a quorum or for any vote or
other action.
Section 4. ANNUAL MEETING OF DIRECTORS. The first meeting of each newly
elected Board of Directors may be held without notice immediately after an
annual meeting of stockholders (or a special meeting of stockholders held in
lieu of an annual meeting) at the same place as that at which such meeting of
stockholders was held; or such first meeting may be held at such place (within
or without the State of Delaware) and time as shall be fixed by the consent in
writing of all the Directors, or may be called in the manner hereinafter
provided with respect to the call of special meetings.
Section 5. REGULAR MEETINGS OF DIRECTORS. Regular meetings of the Board
of Directors may be held at such times and at such place or places (within or
without the State of Delaware) as the Board of Directors may from time to time
prescribe. No notice need be given of any regular meeting and a notice, if
given, need not specify the purposes thereof.
Section 6. SPECIAL MEETINGS OF DIRECTORS. Special meetings of the Board
of Directors may be called at any time by or under the authority of the Chairman
of the Board, if any, or the President and shall be called by him or her or by
the Secretary on written request of any two Directors or, if the Secretary fails
to do so, by two Directors in the name of the Secretary, to be held in each
instance at such place (within or without the State of Delaware) as the person
calling the meeting may designate in the call thereof. Notice of each special
meeting of the Board of Directors, stating the time
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and place thereof, shall be given to each Director by the Secretary not less
than twenty-four hours before the meeting. Such notice need not specify the
purposes of the meeting.
Section 7. QUORUM; VOTING. At any meeting of the Board of Directors a
majority of the Directors then in office shall constitute a quorum for the
transaction of business, but if a quorum shall not be present at any meeting of
Directors, the Directors present thereat may adjourn the meeting from time to
time without notice other than announcement at the meeting, until a quorum shall
be present. Except as otherwise provided by law or by the certificate of
incorporation or by the By-laws, the affirmative vote of at least a majority of
the Directors present at a meeting at which there is a quorum shall be the act
of the Board of Directors.
Section 8. MEETINGS BY TELEPHONE. Members of the Board of Directors or of
any committee thereof may participate in meetings of the Board of Directors or
of such committee by means of conference telephone or similar communications
equipment by means of which all person participating in the meeting can hear
each other, and such participation shall constitute presence in person at such
meeting.
Section 9. ACTION WITHOUT MEETING. Unless otherwise restricted by the
certificate of incorporation, 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,
as the case may be, consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or of such
committee.
Section 10. COMPENSATION. By resolution of the Board of Directors, the
Directors, as such, may receive stated salaries for their services, and may be
allowed a fixed sum and expenses of attendance, if any, for attendance at each
regular or special meeting of the Board. Members of committees may also be
allowed a fixed sum and expenses of attendance, if any, for attending committee
meetings. Nothing herein contained shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation for such services.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
The Board of Directors may, by vote of a majority of the whole Board
(a) designate, change the membership of or terminate the existence of any
committee or committees, each committee to consist of one or more of the
Directors; (b) designate one or more Directors as alternate members of any such
committee who may replace any absent or disqualified member at any meeting of
the committee; and (c) determine the extent to which each such committee shall
have and may exercise the powers of the Board of Directors in the management of
the business and affairs of the Corporation,
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including the power to authorize the seal of the Corporation to be affixed to
all papers which require it and the power and authority to declare dividends or
to authorize the issuance of stock; excepting, however, such powers which by
law, by the certificate of incorporation or by these By-Laws they are prohibited
from so delegating. In the absence or disqualification of any member of such
committee and his alternative, if any, the member or members thereof present at
any meeting and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Except
as the Board of Directors may otherwise determine, any committee may make rules
for the conduct of its business, but unless otherwise provided by the Board or
such rules, its business shall be conducted as nearly as may be in the same
manner as is provided by these By-Laws for the conduct of business by the Board
of Directors. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors upon request.
ARTICLE V
OFFICERS
Section 1. OFFICERS AND THEIR ELECTION, TERM OF OFFICE AND VACANCIES. The
officers of the Corporation shall be a President, a Secretary, a Treasurer and
such Executive Vice Presidents, Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers as the Board of Directors may from time
to time determine and elect or appoint. All officers shall be elected annually
by the Board of Directors at their first meeting following the annual meeting of
stockholders or any special meeting held in lieu thereof and shall hold office
until their successors are duly elected and qualified. The Chairman of the
Board, if there is one, must be a Director. Any other officer may, but need not
be, a member of the Board of Directors. Two or more offices may be held by the
same person. Any officer elected by the Board of Directors may be removed at
any time by the Board of Directors. If any vacancy shall occur among the
officers, it shall be filled by the Board of Directors.
Section 2. CHAIRMAN OF THE BOARD OF DIRECTORS AND PRESIDENT. The Chairman
of the Board, if any, shall have such duties and powers as shall be designated
from time to time by the Board of Directors. Unless the Board of Directors
otherwise specifies, the Chairman of the Board, or if there is none the chief
executive officer, shall preside, or designate the person who shall preside, at
all meetings of the stockholders and of the Board of Directors.
Unless the Board of Directors otherwise specifies, the President shall be
the chief executive officer and shall have direct charge of all business
operations of the Corporation and, subject to the control of the Directors,
shall have general charge and supervision of the business of the Corporation.
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Section 3. VICE PRESIDENTS. In the absence or disability of the
President, his or her powers and duties shall be performed by the Executive Vice
President, if only one, or, if more than one, by the one designated for the
purpose by the Board. Each Vice President shall have such other powers and
perform such other duties as the Board shall from time to time designate.
Section 4. TREASURER. The Treasurer shall keep full and accurate accounts
of receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositaries as shall be designated by the Board or in
the absence of such designation in such depositaries as he or she shall from
time to time deem proper. He or she shall disburse the funds of the Corporation
as shall be ordered by the Board, taking proper vouchers for such disbursements.
He or she shall promptly render to the President and to the Board such
statements of his or her transactions and accounts as the President and Board
respectively may from time to time require. The Treasurer shall perform such
duties and have such powers additional to the foregoing as the Board may
designate.
Section 5. ASSISTANT TREASURERS. In the absence or disability of the
Treasurer, his or her powers and duties shall be performed by the Assistant
Treasurer, if only one, or if more than one, by the one designated for the
purpose by the Board. Each Assistant Treasurer shall have such other powers and
perform such other duties as the Board shall from time to time designate.
Section 6. THE SECRETARY. The Secretary shall issue notices of all
meetings of stockholders and Directors and of the executive and other committees
where notices of such meetings are required by law or these By-laws. He or she
shall keep the minutes of meetings of stockholders and of the Board of Directors
and of the executive and other committees, respectively, unless such committees
appoint their own respective secretaries and be responsible for the custody
thereof. Unless the Board shall appoint a transfer agent and/or registrar, the
Secretary shall be charged with the duty of keeping, or causing to be kept,
accurate records of all stock outstanding, stock certificates issued and stock
transfers. He or she shall sign such instruments as require his or her
signature and shall perform such other duties and shall have such powers as the
Board of Directors shall designate from time to time, in all cases subject to
the control of the Board of Directors. The Secretary shall have custody of the
corporate seal, shall affix and attest such seal on all documents whose
execution under seal is duly authorized. In his or her absence at any meeting,
an Assistant Secretary or the Secretary pro tempore shall perform his or her
duties thereat.
Section 7. ASSISTANT SECRETARIES. In the absence or disability of the
Secretary, his or her powers and duties shall be performed by the Assistant
Secretary, if only one, or, if more than one, by the one designated for the
purpose by the Board. Each Assistant Secretary shall have such powers and
perform such other duties as the Board shall from time to time designate.
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Section 8. SALARIES. The salaries of officers, agents and employees shall
be fixed from time to time by or under authority from the Board of Directors.
ARTICLE VI
RESIGNATIONS AND REMOVALS
Section 1. OFFICERS, AGENTS, EMPLOYEES AND MEMBERS OF COMMITTEES. Any
officer, agent or employee of the Corporation may resign at any time by giving
written notice to the Board of Directors or to the Chairman of the Board, if
any, the President or the Secretary of the Corporation; and any member of any
committee may resign by giving written notice either as aforesaid or to the
committee of which he or she is a member or to the chairman thereof. Any such
resignation shall take effect at the time specified therein, or if the time be
not specified, upon receipt thereof, and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
The Board of Directors may at any time, with or without cause, remove from
office or discharge or terminate the employment of any officer, agent, employee
or member of any committee.
Section 2. DIRECTORS. Any Director of the Corporation may resign at any
time by giving written notice to the Board of Directors or to the Chairman of
the Board, if any, the President or the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, or if the time be
not specified, upon receipt thereof; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
When one or more Directors shall resign from the Board of Directors, effective
at a future date, a majority of the Directors then in office, including those
who have so resigned, shall have power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as provided in these
By-laws in the filling of other vacancies. The stockholders of the Corporation
entitled to vote upon the election of Directors may, at any time, remove from
office any one or more Directors only with cause, and his or her successor or
their successors shall be elected by the remaining Directors as provided in
these By-laws with respect to the filling of other vacancies. A Director may be
removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him or her.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 1. The Corporation shall indemnify, to the fullest extent
permitted by the General Corporation Law of the State of Delaware as presently
in effect or as hereafter amended:
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(a) Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and whether
external or internal to the Corporation (other than by action by or in the
right of the Corporation) by reason of the fact that he or she is or was a
Director or officer of the Corporation, or is or was serving at the request
of the Corporation as a Director or officer of another Corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection
with such suit, action or proceeding if he or she acted in good faith and
in a manner which he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of NOLO CONTENDERE
or its equivalent, shall not, of itself, create a presumption that the
person 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 interests of the Corporation,
and, with respect to any criminal action or proceeding, that the person had
no reasonable cause to believe that his or her conduct was lawful.
(b) 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 or officer of the Corporation,
or is or was serving at the request of the Corporation as a Director or
officer of another Corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) and amounts paid
in settlement actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit if he or she 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 and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery 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 or such other court shall deem proper.
Section 2. The Board of Directors, in its discretion, may authorize the
Corporation to indemnify to the fullest extent permitted by the General
Corporation Law of the State of Delaware (as presently in effect or as hereafter
amended):
(a) Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil,
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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 an employee or agent of the Corporation, or is or was serving at the
request of the Corporation as an employee or agent of another Corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection
with such suit, action or proceeding if he or she 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 by judgment,
order, settlement, conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that the person 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 interests of the Corporation, and, with
respect to any criminal action or proceeding, that the person had no
reasonable cause to believe that his or her conduct was lawful.
(b) 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 an employee or agent of the Corporation,
or is or was serving at the request of the Corporation as an employee or
agent of another Corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) and amounts paid
in settlement actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit if he or she 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 and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery 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 or such other court shall deem proper.
Section 3. Any indemnification under this Article VII (unless required by
law or ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the Director,
officer, employee or agent is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in Sections l and 2 of this
Article VII. Such determination shall be made with respect to indemnification
of a Director or officer (i) by a majority vote of the Directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(ii) if there are no such Directors, or if such Directors so direct, by
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independent legal counsel in a written opinion, or (iii) by the stockholders of
the Corporation.
Section 4. Expenses incurred by a Director or officer in defending a civil
or criminal action, suit or proceeding shall 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 or officer 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 VII. Any advance
under this Section 4 shall be made promptly, and in any event within ninety
days, upon the written request of the person seeking the advance.
Section 5. The indemnification and advancement of expenses provided by, or
granted pursuant to, the other Sections of this Article VII shall not be deemed
exclusive of any other rights to which any person, whether or not entitled to be
indemnified under this Article VII, may be entitled under any statute, by-law,
agreement, vote of stockholders or disinterested Directors or otherwise, both as
to action in his or her official capacity and as to action in another capacity
while holding such office. Each person who is or becomes a Director or officer
as described in Section 1 shall be deemed to have served or to have continued to
serve in such capacity in reliance upon the indemnity provided for in this
Article VII. All rights to indemnification under this Article VII shall be
deemed to be provided by a contract between the Corporation and the person who
serves as a Director or officer of the Corporation at any time while these
By-laws and other relevant provisions of the General Corporation Law of the
State of Delaware and other applicable law, if any, are in effect. Any repeal
or modification thereof shall not affect any rights or obligations then
existing.
Section 6. The Board of Directors may at any time and from time to time
cause the Corporation 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,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise, against any liability asserted against him or her 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 him or her
against such liability under the provisions of the General Corporation Law of
the State of Delaware (as presently in effect or hereafter amended), the
Certificate of Incorporation of the Corporation or these By-laws.
Section 7. The Corporation's indemnification under Sections 1 and 2 of
this Article VII 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, shall be reduced by any
amounts such person receives as indemnification (i) under any policy of
insurance purchased and maintained on his or her behalf by the Corporation, (ii)
from such other Corporation, partnership, joint
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venture, trust or other enterprise, or (iii) under any other applicable
indemnification provision.
Section 8. In the discretion of the Board of Directors of the Corporation,
for the purposes of this Article VII, references to "the Corporation" may also
include 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 or
officers, so that any person who is or was a Director or officer of such
constituent Corporation, or is or was serving at the request of such constituent
Corporation as a Director or officer of another Corporation, partnership, joint
venture, trust or other enterprise, would stand in the same position under the
provisions of this Article VII with respect to the resulting or surviving
Corporation as he or she would have with respect to such other constituent
Corporation if its separate existence had continued.
Section 9. In addition to and without limiting the foregoing provisions of
this Article VII and except to the extent otherwise required by law, any person
seeking indemnification under or pursuant to Section 1 of this Article VII shall
be deemed and presumed to have met the applicable standard of conduct set forth
in Section l unless the contrary shall be established.
Section 10. For purposes of this Article VII, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service by a Director or officer of the Corporation which
imposes duties on, or involves services by, such person with respect to any
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 VII.
Section 11. To the extent that a Director, officer, agent or employee of
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 or in Section 2, 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 therewith.
Section 12. The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article VII shall 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.
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ARTICLE VIII
CAPITAL STOCK
Section 1. STOCK CERTIFICATES. Each stockholder shall be entitled to a
certificate or certificates representing in the aggregate the shares owned by
him or her and certifying the number and class thereof, which shall be in such
form as this Board shall adopt. Each certificate of stock shall be signed by
the President or a Vice President, and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary. Any of or all 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 has ceased to be such officer, transfer agent or registrar
before the certificate is issued, such certificate may nevertheless be issued by
the Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Section 2. TRANSFER OF STOCK. Shares of stock shall be transferable on
the books of the Corporation pursuant to applicable law and such rules and
regulations as the Board of Directors shall from time to time prescribe.
Section 3. HOLDERS OF RECORD. Prior to due presentment for registration
of transfer the Corporation may treat the holder of record of a share of its
stock as the complete owner thereof exclusively entitled to vote, to receive
notifications and otherwise entitled to all the rights and powers of a complete
owner thereof, notwithstanding notice to the contrary.
Section 4. TRANSFER AGENT AND REGISTRAR. The Board of Directors may at
any time appoint a transfer agent or agents and/or registrar or registrars for
the transfer and/or registration of shares of stock.
Section 5. LOST, STOLEN, DESTROYED OR MUTILATED STOCK CERTIFICATES. The
Board of Directors may direct a new stock certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen, destroyed or mutilated, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen, destroyed or mutilated. When authorizing such issue
of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen, destroyed or mutilated certificate or certificates,
or his or her legal representative, to (a) advertise the same in such manner as
it shall require and/or (b) give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen, destroyed or
mutilated and/or (c) comply with any other reasonable requirements prescribed by
the Board.
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ARTICLE IX
SECURITIES OF OTHER CORPORATIONS
Subject to any limitations that may be imposed by the Board of Directors,
the Chairman of the Board of Directors, if any, the President or any person or
persons authorized by the Board may in the name and on behalf of the Corporation
(i) act or appoint any other person or persons (with or without powers of
substitution) to act in the name and on behalf of the Corporation (as proxy or
otherwise), at any meeting of the holders of stock or other securities of any
Corporation or other organization, securities of which shall be held by this
Corporation, or (ii) express consent or dissent, as a holder of such securities,
to corporate or other action by such other Corporation or organization.
ARTICLE X
CHECKS, NOTES, DRAFTS AND OTHER INSTRUMENTS
Checks, notes, drafts and other instruments for the payment of money drawn
or endorsed in the name of the Corporation may be signed by any officer or
officers or person or persons authorized by the Board of Directors to sign the
same. No officer or person shall sign any such instrument as aforesaid unless
authorized by the Board to do so.
ARTICLE XI
DIVIDENDS AND RESERVES
Section 1. DIVIDENDS. Dividends upon the capital stock of the Corporation
may, subject to any provisions of the certificate of incorporation, be declared
pursuant to law by the Board of Directors. Dividends may be paid in cash, in
property or in shares of the capital stock.
Section 2. RESERVES. Before payment of any dividend there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors from time to time, in its absolute discretion,
thinks proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Directors shall think conducive to the interest of
the Corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
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ARTICLE XII
CORPORATE SEAL
The corporate seal shall be in such form as the Board of Directors may from
time to time prescribe and the same may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
ARTICLE XIII
FISCAL YEAR
The fiscal year of the Corporation shall end on the 31st day of December of
each year.
ARTICLE XIV
BOOKS AND RECORDS
The books, accounts and records of the Corporation, except as may be
otherwise required by the laws of the State of Delaware, may be kept outside of
the State of Delaware, at such place or places as the Board of Directors may
from time to time appoint. Except as may otherwise be provided by law, the
Board of Directors shall determine whether and to what extent the books,
accounts, records and documents of the Corporation, or any of them, shall be
open to the inspection of the stockholders, and no stockholder shall have any
right to inspect any book, account, record or document of the Corporation,
except as conferred by law or by resolution of the stockholders or Board of
Directors.
ARTICLE XV
NOTICES
Section 1. MANNER OF GIVING OF NOTICE. Whenever the provisions of a law,
the certificate of incorporation, the By-laws or rules of a committee require
notice to be given to any Director, officer, stockholder or member of a
committee, they shall not be construed to mean personal notice; such notice may
be given by telegram or by depositing such notice in a post office or letter
box, in a postage paid, sealed wrapper, addressed to such Director, officer,
stockholder or member of a committee at his or her address as the same appears
in the books or records of the Corporation (unless he or she shall have filed
with the Secretary a written request that notice intended for him or her be sent
to some other address, in which case it shall be sent to the address designated
in the most recent such request); and the time when such telegram shall be
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transmitted or notice deposited shall be deemed to be the time of the giving of
such notice.
Section 2. WAIVER OF NOTICE. Whenever notice is required by law, the
certificate of incorporation, the By-laws, or as otherwise provided by law, a
written waiver thereof, signed by the person entitled to notice, shall be deemed
equivalent to notice, whether signed before or after the time required for such
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. 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.
ARTICLE XVI
SEVERABILITY
If any term or provision of the By-laws, or the application thereof to any
person or circumstance or period of time, shall to any extent be invalid or
unenforceable, the remainder of the By-laws, or the application of such term or
provision to persons or circumstances or periods of time other than those as to
which it is invalid or unenforceable, shall not be affected thereby and each
term and provision of the By-laws shall be valid and enforced to the fullest
extent permitted by law.
ARTICLE XVII
AMENDMENTS
The Board of Directors and the stockholders shall each have the power to
adopt, alter, amend and repeal these By-laws; and any By-laws adopted by the
Directors or the stockholders under the powers conferred hereby may be altered,
amended or repealed by the Directors or by the stockholders. Any adoption,
alteration, amendment or repeal of any By-laws by the stockholders shall require
the affirmative vote of the holders of at least two-thirds of the outstanding
shares of capital stock entitled to vote therein.
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