Exhibit 3.2
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AMENDED AND RESTATED
BY-LAWS
OF
ACCREDO HEALTH, INCORPORATED
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INCORPORATED UNDER THE LAWS OF THE
STATE OF DELAWARE
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ADOPTED AS OF
MAY 24, 1996
AMENDED AND RESTATED AS OF
APRIL __, 1999
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TABLE OF CONTENTS
ARTICLE I OFFICES...................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS..................................................1
Section 1. Place of Meetings.........................................................1
Section 2. Annual Meeting............................................................1
Section 3. Special Meetings..........................................................1
Section 4. Notice of Meetings........................................................2
Section 5. List of Stockholders......................................................2
Section 6. Quorum....................................................................2
Section 7. Organization and Procedure................................................2
Section 8. Voting....................................................................3
Section 9. Proxies...................................................................3
Section 10. Inspectors................................................................3
Section 11. Nominations of Directors..................................................4
Section 12. New Business..............................................................6
ARTICLE III BOARD OF DIRECTORS........................................................7
Section 1. Powers....................................................................7
Section 2. Election and Term.........................................................7
Section 3. Number....................................................................7
Section 4. Quorum and Manner of Acting...............................................7
Section 5. Organization Meeting......................................................8
Section 6. Regular Meetings..........................................................8
Section 7. Special Meetings; Notice..................................................8
Section 8. Removal of Directors......................................................8
Section 9. Resignations..............................................................9
Section 10. Vacancies.................................................................9
Section 11. Compensation of Directors.................................................9
Section 12. Action Without a Meeting..................................................9
Section 13. Telephonic Participation in Meetings......................................9
Section 14. Organization..............................................................9
Section 15. Presumption of Assent.....................................................10
ARTICLE IV COMMITTEES................................................................10
Section 1. Committees................................................................10
ARTICLE V OFFICERS..................................................................10
Section 1. Principal Officers........................................................10
Section 2. Election and Term of Office...............................................10
Section 3. Other Officers............................................................11
Section 4. Removal...................................................................11
Section 5. Resignations..............................................................11
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Section 6. Vacancies.................................................................11
Section 7. Chairman of the Board of Directors and Vice Chairman of
the Board of Directors ...................................................11
Section 8. Chief Executive Officer...................................................11
Section 9. President.................................................................12
Section 10. Vice President............................................................12
Section 11. Treasurer.................................................................12
Section 12. Secretary.................................................................12
Section 13. Compensation of Officers..................................................12
Section 14. Execution of Instruments..................................................13
Section 15. Mechanical Endorsements...................................................13
ARTICLE VI INDEMNIFICATION...........................................................13
Section 1. Indemnification Provisions in Certificate of Incorporation................13
Section 2. Indemnification of Employees..............................................13
Section 3. Undertakings for Advances of Expenses.....................................13
Section 4. Claims for Indemnification................................................13
Section 5. Insurance.................................................................14
Section 6. Severability..............................................................14
ARTICLE VII SHARES AND THEIR TRANSFER.................................................14
Section 1. Certificate for Stock.....................................................14
Section 2. Stock Certificate Signature...............................................14
Section 3. Stock Ledger..............................................................15
Section 4. Cancellation..............................................................15
Section 5. Registrations of Transfers of Stock.......................................15
Section 6. Regulations...............................................................15
Section 7. Lost, Stolen, Destroyed or Mutilated Certificates.........................15
Section 8. Record Dates..............................................................16
ARTICLE VIII MISCELLANEOUS PROVISIONS..................................................16
Section 1. Corporate Seal............................................................16
Section 2. Voting of Stocks Owned by the Corporation.................................16
Section 3. Dividends.................................................................16
ARTICLE IX AMENDMENTS................................................................16
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BY-LAWS
OF
ACCREDO HEALTH, INCORPORATED
(a Delaware corporation)
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ARTICLE I
OFFICES
The registered office of the Corporation in the State of Delaware shall
be located in the City of Wilmington, County of New Castle. The Corporation may
establish or discontinue, from time to time, such other offices within or
without the State of Delaware as may be deemed proper for the conduct of the
Corporation's business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of stockholders shall be
held at such place or places, within or without the State of Delaware, as may
from time to time be fixed by the Board of Directors, or as shall be specified
in the respective notices, or waivers of notice, thereof.
SECTION 2. ANNUAL MEETING. The annual meeting of stockholders for the
election of Directors and the transaction of other business shall be held on
such date and at such place as may be designated by the Board of Directors. At
each annual meeting the stockholders entitled to vote shall elect a Board of
Directors and may transact such other proper business as may come before the
meeting.
SECTION 3. SPECIAL MEETINGS. A special meeting of the stockholders, or
of any class thereof entitled to vote, for any purpose or purposes, may be
called at any time by the Chairman of the Board, if any, or the Chief Executive
Officer or by order of the Board of Directors and shall be called by the
Secretary upon the written request of stockholders holding of record not less
than two-thirds of the outstanding shares of stock of the Corporation entitled
to vote at such meeting. Such written request shall state the purpose or
purposes for which such meeting is to be called. The only business which may be
conducted at such a meeting, other than procedural matters and matters relating
to the conduct of the meeting, shall be the matter or matters described in the
notice of the meeting.
SECTION 4. NOTICE OF MEETINGS. Except as otherwise provided by law,
written notice of each meeting of stockholders, whether annual or special,
stating the place, date and hour of the meeting shall be given not less than ten
days or more than sixty days before the date on which the meeting is to be held
to each stockholder of record entitled to vote thereat by delivering a notice
thereof to him personally or by mailing such notice in a postage prepaid
envelope directed to him at his address as it appears on the records of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices intended for him be directed to another address, in
which case such notice shall be directed to him at the address designated in
such request. Notice shall not be required to be given to any stockholder who
shall waive such notice in writing, whether prior to or after such meeting, or
who shall attend such meeting in person or by proxy unless such attendance is
for the express purpose of objecting, at the beginning of such meeting, to the
transactions of any business because the meeting is not lawfully called or
convened. Every notice of a special meeting of the stockholders, besides the
time and place of the meeting, shall state briefly the objects or purposes
thereof.
SECTION 5. LIST OF STOCKHOLDERS. It shall be the duty of the Secretary
or other officer of the Corporation who shall have charge of the stock ledger to
prepare and make, at least ten days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in his name. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall be kept and produced at the time
and place of the meeting during the whole time thereof and subject to the
inspection of any stockholder who may be present. The original or duplicate
ledger shall be the only evidence as to who are the stockholders entitled to
examine such list or the books of the Corporation or to vote in person or by
proxy at such meeting.
SECTION 6. QUORUM. At each meeting of the stockholders, the holders of
record of a majority of the issued and outstanding stock of the Corporation
entitled to vote at such meeting, present in person or by proxy, shall
constitute a quorum for the transaction of business, except where otherwise
provided by law, the Certificate of Incorporation or these By-laws. In the
absence of a quorum, any officer entitled to preside at, or act as Secretary of,
such meeting shall have the power to adjourn the meeting from time to time until
a quorum shall be constituted.
SECTION 7. ORGANIZATION AND PROCEDURE.
(a) The Chairman of the Board, or, in the absence of the Chairman of
the Board, the Vice Chairman of the Board, or any other person designated by the
Board of Directors, shall preside at meetings of stockholders. The Secretary of
the Corporation
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shall act as secretary, but in the absence of the Secretary, the presiding
officer may appoint a secretary.
(b) At each meeting of stockholders, the chairman of the meeting shall
fix and announce the date and time of the opening and the closing of the polls
for each matter upon which the stockholders will vote at the meeting and shall
determine the order of business and all other matters of procedure. Except to
the extent inconsistent with any such rules and regulations as adopted by the
Board of Directors, the chairman of the meeting may establish rules, which need
not be in writing, to maintain order for the conduct of the meeting, including,
without limitation, restricting attendance to bona fide stockholders of record
and their proxies and other persons in attendance at the invitation of the
chairman and making rules governing speeches and debates. Except to the extent
inconsistent with any rules and regulations adopted by the Board of Directors,
the chairman of the meeting acts in his or her absolute discretion and his or
her rulings are not subject to appeal.
SECTION 8. VOTING. Every stockholder of record who is entitled to vote
shall at every meeting of the stockholders be entitled to one vote for each
share of stock held by him on the record date. At all meetings of the
stockholders, a quorum being present, all matters shall be decided by majority
vote of the shares of stock entitled to vote held by stockholders present in
person or by proxy, except as otherwise required by law or the Certificate of
Incorporation. Unless demanded by a stockholder of the Corporation present in
person or by proxy at any meeting of the stockholders and entitled to vote
thereat or so directed by the chairman of the meeting or required by law, the
vote thereat on any question need not be by written ballot. On a vote by written
ballot, each ballot shall be signed by the stockholder voting, or in his name by
his proxy, if there be such proxy, and shall state the number of shares voted by
him and the number of votes to which each share is entitled.
SECTION 9. 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. No proxy shall be valid after the expiration of
three years from the date thereof unless the proxy provides for a longer period.
SECTION 10. INSPECTORS. The Board of Directors by resolution shall, in
advance of any meeting of stockholders, appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives of the Corporation, to act at the meeting and make a written
report thereof. One or more persons may be designated by the Board of Directors
as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the chairman
of the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her duties, shall take and sign an
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oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspector(s) shall have the
duties prescribed by the Delaware General Corporation Law.
SECTION 11. NOMINATIONS OF DIRECTORS. Nominations of candidates for
election as directors at any annual or special meeting of stockholders may be
made (i) by, or at the direction of, a majority of the Board of Directors or
(ii) by any stockholder of record entitled to vote at such meeting. Except to
the extent otherwise required by law, only persons nominated in accordance with
procedures set forth in this Section 11 shall be eligible for election as a
director at an annual or special meeting.
Nominations, other than those made by, or at the direction of, a
majority of the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the Corporation as set forth in this Section 11. 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 sixty (60)
days nor more than ninety (90) days prior to the date of the scheduled annual or
special meeting, regardless of postponements, deferrals, or adjournments of that
meeting to a later date; provided, however, that if less than seventy (70) days'
notice or prior public disclosure of the date of the scheduled annual or special
meeting is given or made, notice by the stockholder to be timely must be so
delivered or received no later than the close of business on the tenth (10th)
day following the earlier of the day on which such notice of the date of the
scheduled annual or special meeting was mailed or the day on which such public
disclosure was made. Such stockholder's notice shall be set forth (i) as to each
person whom the stockholder proposes to nominate as a director (a) the name,
age, business address and residence address of such person, (b) the principal
occupation or employment of such person, (c) the class and number of shares of
the Corporation's equity securities which are Beneficially Owned (as defined
below) by such person on the date of such stockholder notice and (d) and any
other information relating to such person that would be required to be disclosed
pursuant to Regulation 13D under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), in connection with the acquisition of shares, and pursuant
to Regulation 14A under the Exchange Act, in connection with the solicitation of
proxies with respect to nominees for election as directors, regardless of
whether such person is subject to the provisions of such regulations, including,
but not limited to, information required to be disclosed by Items 4(b) and 6 of
Schedule A of Regulation 14A and information which would be required to be filed
on Schedule B of Regulation 14A with the Securities and Exchange Commission (as
such Items and Schedules are in effect on the date hereof and such additional
information as may be required by those provisions or successor provisions
adopted after the date thereof); and (ii) as to the stockholder giving the
notice (a) the name and address, as they appear on the Corporation's books, of
such stockholder and any other stockholder who is a record or Beneficial Owner
of any equity securities of the Corporation and who is known by such stockholder
to be supporting such nominee(s) and (b) the class and number of shares of the
Corporation's equity securities which are Beneficially Owned and owned of record
by such stockholder on the date of such stockholder notice and the number of
shares of the Corporation's equity securities
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Beneficially Owned and owned of record by any Person known by such stockholder
to be supporting such nominee(s) on the date of such stockholder notice. At the
request of a majority of the Board of Directors any person nominated by, or at
the direction of, the Board of Directors for election as a director at an annual
or special meeting 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. Ballots bearing the names of all the persons who
have been nominated for election as directors at an annual or special meeting in
accordance with procedures set forth in this Section 11 shall be provided for
use at the annual meeting.
A majority of the directors may reject any nomination by a stockholder
not timely made in accordance with the requirements of this Section 11. If a
majority of the directors determines that the information provided in a
stockholder's notice does not satisfy the informational requirements of this
Section 11 in any material respect, the Secretary of the Corporation shall
promptly notify such stockholder of the deficiency in the notice. The
stockholder shall have an opportunity to cure the deficiency by providing
additional information to the Secretary within such period of time, not to
exceed five (5) days, from the date such deficiency notice is given to the
stockholder, as a majority of the directors shall reasonably determine. If the
deficiency is not cured within such period, or if a majority of the directors
reasonably determine that the additional information provided by the
stockholder, together with the information previously provided, does not satisfy
the requirements of this Section 11 in any material respect, then a majority of
the directors may reject such stockholder's nomination. The Secretary of the
Corporation shall notify a stockholder in writing whether his nomination has
been made in accordance with the time and informational requirements of this
Section 11. Notwithstanding the procedure set forth in this Section 11, if the
majority of the directors does not make a determination as to the validity of
any nominations by a stockholder, the presiding officer of the annual or special
meeting shall determine and declare at the annual or special meeting whether a
nomination was not made in accordance with the terms of this Section 11. If the
presiding officer determines that a nomination was not made in accordance with
the terms of this Section 11, he shall so declare at the annual or special
meeting and the defective nomination shall be disregarded.
For the purposes of this Section 11 and Section 12, a person shall be
considered the "Beneficial Owner" of any security (whether or not owned of
record):
(a) with respect to which such person or any affiliate or associate (as
those term are defined under Rule 12b-2 of the General Rules and Regulations
under the Exchange Act) of such person directly or indirectly has or shares (i)
voting power, including the power to vote or to direct the voting of such
securities and/or (ii) investment power, including the power to dispose of or to
direct the disposition of such security;
(b) which such person or any affiliate or associate of such person has
(i) the right or obligation to acquire (whether such right or obligation is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or
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understanding (whether or not in writing) or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, and/or (ii) the
right to vote pursuant to any agreement, arrangement or understanding (whether
or not in writing and whether or not such right is exercisable immediately or
only after the passage of time); or
(c) which is Beneficially Owned within the meaning of (a) or (b) of
this paragraph by any other person with which such first-mentioned person or any
of its affiliates or associates has any agreement, arrangement or understanding
(whether or not in writing), with respect to (x) acquiring, holding, voting or
disposing of such security or any security convertible into or exchangeable or
exercisable for such security, or (y) acquiring, holding or disposing of all or
substantially all of the assets or businesses of the Corporation or a subsidiary
of the Corporation.
SECTION 12. NEW BUSINESS. At an annual or special meeting of
stockholders, only such new business shall be conducted, and only such proposals
shall be acted upon, as shall have been brought before the annual or special
meeting (a) by, or at the direction of, the majority of the Board of Directors
or (b) by any stockholder of the Corporation who complies with the notice
procedures set forth in this Section 12, except to the extent otherwise
requested by law. For the proposal to be properly brought before an annual or
special 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 sixty (60) days nor
more than ninety (90) days prior to the scheduled annual or special meeting,
regardless of any postponement, deferrals or adjournments of that meeting to a
later date, provided, however, that if less than seventy (70) days' notice or
prior public disclosure of the date of the scheduled annual or special meeting
is given or made, notice by the stockholder, to be timely, must be so delivered
or received not later than the close of business on the tenth (10th) day
following the earlier of the day on which such notice of the date of the
scheduled annual or special meeting was mailed or the day on which 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 annual or special
meeting (a) a brief description of the proposal desired to be brought before the
annual or special meeting and the reasons for conducting such business at the
annual or special meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business and any other
stockholder who is the record or Beneficial Owner of any equity security of the
Corporation known by such stockholder to be supporting such proposal, (c) the
class and number of shares of the Corporation's equity securities which are
Beneficially Owned and owned of record by the stockholder giving the notice on
the date of such stockholder notice and by, any other record or Beneficial
Owners of the Corporation's equity securities known by such stockholder to be
supporting such proposal on the date of such stockholder notice, and (d) any
financial or other interest of the stockholder in such proposal.
A majority of the directors may reject any stockholder proposal not
timely made in accordance with the terms of this Section 12. If a majority of
the directors determine
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that the information provided in a stockholder's notice does not satisfy the
informational requirements of this Section 12 in any material respect, the
Secretary of the Corporation shall promptly notify such stockholder of the
deficiency in the notice. The stockholder shall have an opportunity to cure the
deficiency by providing additional information to the Secretary within such
period of time, not to exceed five (5) days from the date such deficiency notice
is given to the stockholder, as the majority of the directors shall reasonably
determine. If the deficiency is not cured within such period, or if the majority
of the directors determines that the additional information provided by the
stockholder, together with information previously provided, does not satisfy the
requirements of this Section 12 in any material respect, then a majority of the
directors may reject such stockholder's proposal. The Secretary of the
Corporation shall notify a stockholder in writing whether his or her proposal
has been made in accordance with the time and information requirements of this
Section 12. Notwithstanding the procedures set forth in this paragraph, if a
majority of the directors does not make a determination as to the validity of
any stockholder proposal, the presiding officer of the annual or special meeting
shall determine and declare at the annual or special meeting whether the
stockholder proposal was made in accordance with the terms of this Section 12.
If the presiding officer determines that a stockholder proposal was not made in
accordance with the terms of this Section 12, he or she shall so declare at the
annual or special meeting and any such proposal shall not be acted upon at the
annual or special meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWERS. The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors.
SECTION 2. ELECTION AND TERM. Except as otherwise provided by law or by
the Certificate of Incorporation, Directors shall be elected at the annual
meeting of stockholders and shall hold office until the next annual meeting of
stockholders and until their successors are elected and qualify, or until they
sooner die, resign or are removed. Except as otherwise provided in the
Certificate of Incorporation, at each annual meeting of stockholders, at which a
quorum is present, the persons receiving a plurality of the votes cast shall be
the Directors. Acceptance of the office of Director may be expressed orally or
in writing, and attendance at a meeting shall constitute such acceptance.
SECTION 3. NUMBER. Except as otherwise provided by the Certificate of
Incorporation, the number of directors constituting the Board of Directors shall
be authorized from time to time exclusively by a vote of a majority of the
voting power of all of the shares of capital stock of the Corporation then
entitled to vote in the election of directors.
SECTION 4. QUORUM AND MANNER OF ACTING. Unless otherwise provided by
law or by the Certificate of Incorporation, the presence of 50% of the whole
Board of Directors shall be necessary to constitute a quorum for the transaction
of business. In the absence of
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a quorum, a majority of the Directors present may adjourn the meeting from time
to time until a quorum shall be present. Notice of any adjourned meeting need
not be given. At all meetings of Directors, a quorum being present, all matters
shall be decided by the affirmative vote of a majority of the Directors present,
except as otherwise required by law or the Certificate of Incorporation. The
Board of Directors may hold its meetings at such place or places within or
without the State of Delaware as the Board of Directors may from time to time
determine or as shall be specified in the respective notices, or waivers of
notice, thereof.
SECTION 5. ORGANIZATION MEETING. After each annual meeting of
stockholders for the election of Directors, the Board of Directors shall meet
for the purpose of organization, the election of officers and the transaction of
other business. Notice of such meeting need not be given.
SECTION 6. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held at such place, within or without the State of Delaware, as shall
from time to time be determined by the Board of Directors. After there has been
such determination, and notice thereof has been once given to each member of the
Board of Directors as hereinafter provided for special meetings, regular
meetings may be held without further notice being given.
SECTION 7. SPECIAL MEETINGS; NOTICE. The Chairman of the Board, if any,
the Chief Executive Officer or a majority of the Directors may call a special
meeting of the Directors at any time by giving each Director (2) days prior
notice. Such notice may be given orally or in writing. If given in writing, such
notice shall be deemed to be effective when received and may be given by any
means, including personal delivery, by mail, or by telegram, telex, or facsimile
transmission. If given by mail, such notice shall also be deemed effective five
days after deposited in the United States mail if mailed with first-class
postage prepaid. Notice may be addressed to a Director's residence or usual
place of business. Each such notice shall state the time and place of the
meeting . Notice of any meeting of the Board of Directors need not be given to
any Director if he shall sign a written waiver thereof either before or after
the meeting, or if he shall be present at the meeting. Unless limited by law,
the Certificate of Incorporation, these By-laws or the terms of the notice
thereof, any and all business may be transacted at any meeting without the
notice thereof having specifically identified the matters to be acted upon.
SECTION 8. EREMOVAL OF DIRECTORS. Except as otherwise provided in the
Certificate of Incorporation, any Director or the entire Board of Directors may
be removed, with or without cause, at any time, by action of the holders of
record of the majority of the issued and outstanding stock of the Corporation
(a) present in person or by proxy at a meeting of holders of such stock and
entitled to vote thereon or (b) by a consent in writing in the manner
contemplated by the Certificate of Incorporation, and the vacancy or vacancies
in the Board of Directors caused by any such removal may be filled by action of
such a majority at such meeting or at any subsequent meeting or by written
consent.
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SECTION 9. RESIGNATIONS. Any Director of the Corporation may resign at
any time by giving written notice to the Chairman of the Board, to the Chief
Executive Officer or the Secretary of the Corporation. The resignation of any
Director shall take effect upon receipt of notice thereof or at such later time
as shall be specified in such notice; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
SECTION 10. VACANCIES. Except as otherwise provided in the Certificate
of Incorporation, any newly created directorships and vacancies occurring in the
Board by reason of death, resignation, retirement, disqualification or removal,
with or without cause, may be filled by the action of the holders of record of
the majority of the issued and outstanding stock of the Corporation (a) present
in person or by proxy at a meeting of holders of such stock and entitled to vote
thereon or (b) by a consent in writing in the manner contemplated by the
Certificate of Incorporation. The Director so chosen, whether selected to fill a
vacancy or elected to a new directorship shall hold office until the next
meeting of stockholders at which the election of Directors is in the regular
order of business, and until his successor has been elected and qualifies, or
until he sooner dies, resigns or is removed.
SECTION 11. COMPENSATION OF DIRECTORS. Directors, as such, shall not
receive any stated salary for their services, but, by resolution of the Board, a
specific sum fixed by the Board plus expenses may be allowed for attendance at
each regular or special meeting of the Board; PROVIDED, HOWEVER, that nothing
herein contained shall be construed to preclude any Director from serving the
Corporation or any parent or subsidiary corporation thereof in any other
capacity and receiving compensation therefor.
SECTION 12. ACTION WITHOUT A MEETING. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board of
Directors or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes or proceedings of the Board or
committee.
SECTION 13. TELEPHONIC PARTICIPATION IN MEETINGS. Members of the Board
of Directors may participate in a meeting of the Board by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
SECTION 14. ORGANIZATION. The Chairman of the Board, or in the absence
of a Chairman of the Board, the Vice Chairman of the Board, shall preside at
meetings of the Board of Directors; provided that if the Vice Chairman of the
Board is also absent, a member of the Board of Directors selected by the members
present shall preside at such
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meetings. The Secretary of the Corporation shall act as secretary, but in the
absence of the Secretary, the presiding officer may appoint a secretary.
SECTION 15. PRESUMPTION OF ASSENT. A director of the Corporation who is
present at a meeting of the Board of Directors when a vote on any matter is
taken is deemed to have assented to the action taken unless he or she votes
against or abstains from the action taken, or unless at the beginning of the
meeting or promptly upon arrival the director objects to the holding of the
meeting or transacting specified business at the meeting. Any such dissenting
votes, abstentions or objections shall be entered in the minutes of the meeting.
ARTICLE IV
COMMITTEES
SECTION 1. COMMITTEES. The Board of Directors may, by resolutions
passed by a majority of the members of the Board of Directors, designate members
of the Board of Directors to constitute committees which shall in each case
consist of such number of directors, and shall have and may execute such powers
as may be determined and specified in the respective resolutions appointing
them. Any such committee may fix its rules of procedure, determine its manner of
acting and the time and place, whether within or without the State of Delaware,
of its meetings and specify what notice thereof, if any, shall be given, unless
the Board of Directors shall otherwise by resolution provide. Unless otherwise
provided by the Board of Directors or such committee, the quorum, voting and
other procedures shall be the same as those applicable to actions taken by the
Board of Directors. A majority of the members of the Board of Directors then in
office shall have the power to change the membership of any such committee at
any time, to fill vacancies therein and to discharge any such committee or to
remove any member thereof, either with or without cause, at any time.
ARTICLE V
OFFICERS
SECTION 1. PRINCIPAL OFFICERS. The Board of Directors shall elect a
Chief Executive Officer, a President, a Secretary and a Treasurer, and may in
addition elect a Chairman of the Board, one or more Vice Presidents and such
other officers as it deems fit; the Chief Executive Officer, the President, the
Secretary, the Treasurer, the Chairman of the Board, if any, and the Vice
Presidents, if any, being the principal officers of the Corporation. One person
may hold, and perform the duties of, any two or more of said offices.
SECTION 2. ELECTION AND TERM OF OFFICE. The principal officers of the
Corporation shall be elected annually by the Board of Directors at the
organization meeting thereof. Each such officer shall hold office until his
successor shall have been elected and shall qualify, or until his earlier death,
resignation or removal.
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SECTION 3. OTHER OFFICERS. In addition, the Board may elect, or the
Chairman of the Board, if any, or the Chief Executive Officer may appoint, such
other officers as they deem fit. Any such other officers chosen by the Board of
Directors shall be subordinate officers and shall hold office for such period,
have such authority and perform such duties as the Board of Directors, the
Chairman of the Board, if any, or the Chief Executive Officer may from time to
time determine.
SECTION 4. REMOVAL. Any officer may be removed, either with or without
cause, at any time, by resolution adopted by the Board of Directors at any
regular meeting of the Board, or at any special meeting of the Board called for
that purpose, at which a quorum is present.
SECTION 5. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Chairman of the Board, the Chief Executive Officer, or the
Secretary or the Board of Directors. Any such resignation shall take effect upon
receipt of such notice or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 6. VACANCIES. A vacancy in any office may be filled for the
unexpired portion of the term in the manner prescribed in these By-laws for
election or appointment to such office for such term.
SECTION 7. CHAIRMAN OF THE BOARD OF DIRECTORS AND VICE CHAIRMAN OF THE
BOARD OF DIRECTORS. The Chairman of the Board of Directors shall preside at all
meetings of the Board of Directors and the stockholders at which he is present.
The Chairman of the Board of Directors shall perform such other duties and have
such other authority and powers as the Board of Directors may from time to time
prescribe. In the absence of the Chairman of the Board of Directors, the Vice
Chairman of the Board of Directors shall perform the duties and exercise the
powers of the Chairman of the Board of Directors. The Chairman of the Board of
Directors and Vice Chairman of the Board of Directors shall be appointed by the
Board of Directors and shall serve at the pleasure of the Board of Directors.
SECTION 8. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
be the chief executive officer of the Corporation and, subject to the control of
the Board of Directors, shall in general supervise and control all of the
business and affairs of the Corporation. He shall have authority, subject to
such rules as may be prescribed by the Board of Directors, to appoint agents and
employees of the Corporation as he shall deem necessary, to prescribe their
powers, duties and compensation, and to delegate authority to them. Such agents
and employees shall hold office at the discretion of the Chief Executive
Officer. He shall have authority to sign, execute and acknowledge, on behalf of
the Corporation, all deeds, mortgages, bonds, stock certificates, contracts,
leases, reports and all other documents or instruments necessary or proper to be
executed in the course of the Corporation's regular business or which shall be
authorized by resolution of the Board of Directors; and except as otherwise
provided by law or the Board of
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Directors, he may authorize the President or any Vice President or other officer
or agent of the Corporation to sign, execute and acknowledge such documents or
instruments in his place and stead. In general he shall perform all duties
incident to the office of Chief Executive Officer and such other duties as may
be prescribed by the Board of Directors from time to time.
SECTION 9. PRESIDENT. The President shall be the chief operating
officer of the Corporation and shall be responsible for supervising and
directing the operation of the Corporation's business, subject to the direction
of the Chief Executive Officer and the Board of Directors. He shall have such
other duties and powers as may be assigned to or vested in him from time to time
by the Board of Directors or Chief Executive Officer. In the absence of the
Chief Executive Officer or his inability to act, the President shall perform the
duties and exercise the authority of the Chief Executive Officer.
SECTION 10. VICE PRESIDENT. Each Vice President shall have such powers
and shall perform such duties as shall be assigned to him by the President or
the Board of Directors.
SECTION 11. TREASURER. The Treasurer shall have charge and custody of,
and be responsible for, all funds and securities of the Corporation. He shall
exhibit at all reasonable times his books of account and records to any of the
Directors of the Corporation upon application during business hours at the
office of the Corporation where such books and records shall be kept; when
requested by the Board of Directors, he shall render a statement of the
condition of the finances of the Corporation at any meeting of the Board or at
the annual meeting of stockholders; he shall receive, and give receipt for,
moneys due and payable to the Corporation from any source whatsoever; in
general, he shall perform all the duties incident to the office of Treasurer and
such other duties as from time to time may-be assigned to him by the Chairman of
the Board of Directors, the Chief Executive Officer or the Board of Directors.
The Treasurer shall give such bond, if any, for the faithful discharge of his
duties as the Board of Directors may require.
SECTION 12. SECRETARY. The Secretary, if present, shall act as
secretary at all meetings of the Board of Directors and of the stockholders and
keep the minutes thereof in a book or books to be provided for that purpose; he
shall see that all notices required to be given by the Corporation are duly
given and served; he shall have charge of the stock records of the Corporation;
he shall see that all reports, statements and other documents required by law
are properly kept and filed; and in general he shall perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the Chief Executive Officer or the Board of Directors.
SECTION 13. COMPENSATION OF OFFICERS. The officers of the Corporation
shall receive such compensation for their services as the Board of Directors may
determine. The Board of Directors may delegate its authority to a Compensation
Committee to determine compensation to designated officers of the Corporation.
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SECTION 14. EXECUTION OF INSTRUMENTS. Checks, notes, drafts, other
commercial instruments, assignments, guarantees of signatures and contracts
(except as otherwise provided herein or by law) shall be executed by the Chief
Executive Officer, the President, any Vice President or such officers or
employees or agents as the Board of Directors or any of such designated officers
may direct.
SECTION 15. MECHANICAL ENDORSEMENTS. The Chief Executive Officer, the
President, any Vice President or the Secretary may authorize any endorsement on
behalf of the Corporation to be made by such mechanical means or stamps as any
of such officers may deem appropriate.
ARTICLE VI
INDEMNIFICATION
SECTION 1. INDEMNIFICATION PROVISIONS IN CERTIFICATE OF INCORPORATION.
The provisions of this Section VI are intended to supplement Article VIII of the
Certificate of Incorporation pursuant to Sections 8.2 and 8.3 thereof. To the
extent that this Section VII contains any provisions inconsistent with said
Article VIII, the provisions of the Certificate of Incorporation shall govern.
Terms defined in such Article VIII shall have the same meaning in this Section
VI.
SECTION 2. INDEMNIFICATION OF EMPLOYEES. The Corporation may by
resolution of its Board of Directors indemnify and advance expenses to its
employees to the same extent as to its directors and officers, as set forth in
the Certificate of Incorporation and in this Section VI of the Bylaws of the
Corporation.
SECTION 3. UNDERTAKINGS FOR ADVANCES OF EXPENSES. If and to the extent
the Delaware General Corporation Law requires, an advancement by the Corporation
of expenses incurred by an indemnitee pursuant to clause (iii) of the last
sentence of Section 8.1 of the Certificate of Incorporation (hereinafter an
"advancement of expenses") shall be made only upon delivery to the Corporation
of an undertaking (hereinafter an "undertaking"), by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (hereinafter a "final adjudication") that such indemnitee is not entitled
to be indemnified for such expenses under Article VIII of the Certificate of
Incorporation or otherwise.
SECTION 4. CLAIMS FOR INDEMNIFICATION. If a claim for indemnification
under Section 8.1 of the Certificate of Incorporation is not paid in full by the
Corporation within 60 days after it has been received in writing by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense
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of prosecuting or defending such suit. In any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and in any suit by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking the Corporation shall be
entitled to recover such expenses only upon a final adjudication that, the
indemnitee has not met the applicable standard of conduct set forth in Section
145 of the Delaware General Corporation Law (or any successor provision or
provisions). Neither the failure of the Corporation (including the Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in Section 145 of the Delaware General
Corporation Law (or any successor provision or provisions), nor an actual
determination by the Corporation (including the Board of Directors, independent
legal counsel, or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to have or retain such
advancement of expenses, under Article VIII of the Certificate of Incorporation
or this Section VI or otherwise, shall be on the Corporation.
SECTION 5. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, trustee, officer, employee or agent
of the Corporation or another enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
SECTION 6. SEVERABILITY. In the event that any of the provisions of
this Section VI (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions are severable and shall remain
enforceable to the fullest extent permitted by law.
ARTICLE VII
SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATE FOR STOCK. Every stockholder of the Corporation
shall be entitled to a certificate or certificates, to be in such form as the
Board of Directors shall prescribe, certifying the number of shares of the
capital stock of the Corporation owned by him. No certificate shall be issued
for partly paid shares.
SECTION 2. STOCK CERTIFICATE SIGNATURE. The certificates for such stock
shall be numbered in the order in which they shall be issued and shall be signed
by the Chairman
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of the Board, if any, or the President or any Vice President and by the
Secretary or an Assistant Secretary or the Treasurer of the Corporation, and its
seal shall be affixed thereto. If such certificate is countersigned (1) by a
transfer agent other than the Corporation or its employee, or, (2) by a
registrar other than the Corporation or its employee, the signatures of such
officers of the Corporation may be facsimiles. In case any officer of the
Corporation who has signed, or whose facsimile signature has been placed upon,
any such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of issue.
SECTION 3. STOCK LEDGER. A record shall be kept by the Secretary or by
any other officer, employee or agent designated by the Board of Directors of the
name of each person, firm or corporation holding capital stock of the
Corporation, the number of shares represented by, and the respective dates of,
each certificate for such capital stock, and in case of cancellation of any such
certificate, the respective dates of cancellation.
SECTION 4. CANCELLATION. Every certificate surrendered to the
Corporation for exchange or registration of transfer shall be canceled, and no
new certificate or certificates shall be issued in exchange for any existing
certificate until such existing certificate shall have been so canceled, except,
subject to Section 7 of this Article VII, in cases provided for by applicable
law.
SECTION 5. REGISTRATIONS OF TRANSFERS OF STOCK. Registrations of
transfers of shares of the capital stock of the Corporation shall be made on the
books of the Corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation or with a transfer clerk or a transfer agent
appointed as in Section 6 of this Article VII provided, and on surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon. The person in whose name shares of stock stand on the books
of the Corporation shall be deemed the owner thereof for all purposes as regards
the Corporation; PROVIDED, HOWEVER, that whenever any transfer of shares shall
be made for collateral security, and not absolutely, it shall be so expressed in
the entry of the transfer if, when the certificates are presented to the
Corporation for transfer, both the transferor and the transferee request the
Corporation to do so.
SECTION 6. REGULATIONS. The Board of Directors may make such rules and
regulations as it may deem expedient, not inconsistent with the Certificate of
Incorporation or these Bylaws, concerning the issue, transfer and registration
of certificates for shares of the stock of the Corporation. It may appoint, or
authorize any principal officer or officers to appoint, one or more transfer
clerks or one or more transfer agents and one or more registrars, and may
require all certificates of stock to bear the signature or signatures of any of
them.
SECTION 7. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. Before
any certificates for stock of the Corporation shall be issued in exchange for
certificates which
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shall become mutilated or shall be lost, stolen or destroyed, proper evidence of
such loss, theft, mutilation or destruction shall be procured for the Board of
Directors, if it so requires.
SECTION 8. RECORD DATES. For the purpose of determining 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, the Board of Directors may fix, in advance, a date as a
record date for any such determination of stockholders. Such record date shall
not be more than sixty or less than ten days before the date of such meeting, or
more than sixty days prior to any other action.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 1. CORPORATE SEAL. The Board of Directors shall provide a
corporate seal, which shall be in the form of a circle and shall bear the name
of the Corporation and words and figures showing that it was incorporated in the
State of Delaware in the year 1996. The Secretary shall be the custodian of the
seal. The Board of Directors may authorize a duplicate seal to be kept and used
by any other officer.
SECTION 2. VOTING OF STOCKS OWNED BY THE CORPORATION. The Board of
Directors may authorize any person on behalf of the Corporation to attend, vote
and grant proxies to be used at any meeting of stockholders of any corporation
(except the Corporation) in which the Corporation may hold stock.
SECTION 3. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefore, at any regular or special meeting declare dividends upon the capital
stock of the Corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the Corporation available
for dividends such sum or sums as the Directors from time to time in their
discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the Corporation.
ARTICLE IX
AMENDMENTS
The Bylaws may be amended, altered, changed or repealed and new Bylaws
may be adopted (1) at any annual or special meeting of stockholders by the
affirmative vote of the holders of a majority of the voting power of the stock
issued and outstanding and entitled to vote thereat, provided, however, that any
proposed amendment, alteration, change or repeal of, or the adoption of any
Bylaw by such vote of the stockholders that is inconsistent with, Sections 3, 4,
11 or 12 of Article II or Section 3 of Article III of the
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Bylaws shall require the affirmative vote of the holders of not less than
two-thirds (2/3rds) of the voting power of all of the capital stock then
outstanding, and provided, further, however, that, in the case of any such
stockholder action at a special meeting of stockholders, notice of the proposed
amendment, alteration, change, repeal or adoption of the new Bylaw or Bylaws
must be contained in the notice of such special meeting, or (2) by the
affirmative vote of a majority of the Board of Directors; PROVIDED, HOWEVER,
that the stockholders entitled to vote may prescribe that any Bylaw adopted by
the Stockholders may not be amended, altered, changed or repealed by the Board
of Directors; and PROVIDED, FURTHER, that no Bylaw hereafter adopted shall
invalidate any prior act of the directors that would have been valid if such new
Bylaw had not been adopted..
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