THIRD RESTATED BYLAWS
OF
CIMA LABS INC.
ARTICLE I. OFFICES.
Section 1. OFFICES. The corporation shall have a registered office,
a principal office and such other offices as the Board of Directors (the
"Board") may determine. The Board is granted full power and authority to
change any of said offices at any time.
ARTICLE II. STOCKHOLDERS.
Section I. PLACE OF MEETINGS. Meetings of stockholders shall be held
either at the principal office of the corporation or at any other place
within or without the State of Delaware which may be designated by the Board.
Section 2. ANNUAL MEETINGS. The annual meetings of stockholders
shall be held on such date and at such time as may be fixed by the Board. At
such meetings, directors shall be elected and any other proper business may
be transacted.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders
may be called at any time by the Board, the Chairman of the Board, the Chief
Executive Officer or the President. Upon request in writing to the Chairman
of the Board, the Chief Executive Officer, the President, any Vice President
or the Secretary by any person (other than the Board) entitled to call a
special meeting of stockholders, the officer forthwith shall cause notice to
be given to the stockholders entitled to vote that a meeting will be held at
a time requested by the person or persons calling the meeting, not less than
thirty-five (35) nor more than sixty (60) days after the receipt of the
request. If the notice is not given within twenty (20) days after receipt of
the request, the persons entitled to call the meeting may give the notice.
Section 4. NOTICE OF ANNUAL OR SPECIAL MEETING. Written notice of
each annual or special meeting of stockholders shall be given not less than
ten (10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote thereat. Such notice shall state the place,
date and hour of the meeting and in the case of a special meeting, the
purpose or purposes for which the meeting is called. Except as otherwise
expressly required by law, notice of any adjourned meeting of the
stockholders need not be given if the time and place thereof are announced at
the meeting at which the adjournment is taken.
Notice of a stockholders' meeting shall be given either personally or
by mail or by other means of written communication, addressed to the
stockholder at the address of such stockholder appearing on the books of the
corporation or given by the stockholder to the corporation for the purpose of
notice. Notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States' mail, postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient.
Section 5. NOTICE OF BUSINESS. At any regular or special meeting of
stockholders of the corporation, only such business (other than the
nomination and election of directors, which shall be subject to
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Article II Section 6 of these Bylaws) may be conducted as shall be
appropriate for consideration at the meeting of stockholders and as shall
have been brought before the meeting (i) by or at the direction of the Board,
or (ii) by any stockholder of the corporation entitled to vote at the meeting
who complies with the notice procedures set forth in this Section 5.
(a) TIMING OF NOTICE. For such business to be properly
brought before any regular 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 of any such business
to be conducted at an annual meeting must be delivered to the Secretary of
the corporation, or mailed and received at the principal executive office of
the corporation, not less than 90 days before the first anniversary of the
date of the preceding year's annual meeting of stockholders. If, however,
the date of the annual meeting of stockholders is more than 30 days before or
after such anniversary date, notice by a stockholder shall be timely only if
so delivered or so mailed and received not less than 90 days before such
annual meeting or, if later, within 10 days after the first public
announcement of the date of such annual meeting. If a special meeting of
stockholders of the corporation is called in accordance with Article II
Section 3 of these Bylaws for any purpose other than electing directors to
the Board or if a regular meeting other than an annual meeting is held, for a
stockholder's notice of any such business to be timely it must be delivered
to the Secretary of the corporation, or mailed and received at the principal
executive office of the corporation, not less than 90 days before such
special meeting or such regular meeting or, if later, within 10 days after
the first public announcement of the date of such special meeting or such
regular meeting. Except to the extent otherwise required by law, the
adjournment of a regular or special meeting of stockholders shall not
commence a new time period for the giving of a stockholder's notice as
required above.
(b) CONTENT OF NOTICE. A stockholder's notice to the
corporation shall set forth as to each matter the stockholder proposes to
bring before the regular or special meeting (w) a brief description of the
business desired to be brought before the meeting and the reasons for
conducting such business at the meeting, (x) the name and address, as they
appear on the corporation's books, of the stockholder proposing such
business, (y) the class or series (if any) and number of shares of the
corporation that arc beneficially owned by the stockholder, and (z) any
material interest of the stockholder in such business.
(c) CONSEQUENCES OF FAILURE TO GIVE TIMELY NOTICE.
Notwithstanding anything in these Bylaws to the contrary, no business (other
than the nomination and election of directors) shall be conducted at any
regular or special meeting except in accordance with the procedures set forth
in this Section 5 and, as an additional limitation, the business transacted
at any special meeting shall be limited to the purposes stated in the notice
of the special meeting pursuant to Article II Sections 3 and 4 of these
Bylaws. 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 in accordance with the provisions of this Section 5 and, if the
Chairman should so determine, the Chairman shall so declare to the meeting,
and any such business not properly brought before the meeting shall not be
transacted. Nothing in this Section 5 shall be deemed to preclude discussion
by any stockholder of any business properly brought before the meeting in
accordance with these Bylaws.
(d) PUBLIC ANNOUNCEMENT. For purposes of this Article II
Sections 5 and 6 of these Bylaws, "public announcement" means disclosure (i)
when made in a press release reported by the Dow Jones News Service,
Associated Press, or comparable national news service, (ii) when filed in a
document publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14, or 15(d) of the Securities Exchange
Act of 1934, as amended, or (iii) when mailed as the notice of the meeting
pursuant to Article II Sections 3 and 4 of these Bylaws.
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Section 6. NOTICE OF NOMINATIONS OF DIRECTIONS. Only persons
who are nominated in accordance with the procedures set forth in this Section
6 shall be eligible for election as directors at stockholder meetings.
Nominations of persons for election to the Board may be made at a meeting of
stockholders (i) by or at the direction of the Board or (ii) by any
stockholder of the corporation entitled to vote for the election of directors
at the meeting who complies with the notice procedures set forth in this
Section 6.
(a) TIMING OF NOTICE. Nominations by stockholders shall be
made pursuant to timely notice in writing to the Secretary of the
corporation. To be timely, a stockholder's notice of nominations to be made
at an annual meeting of stockholders must be delivered to the Secretary of
the corporation, or mailed and received at the principal executive office of
the corporation, not less than 90 days before the first anniversary of the
date of the preceding year's annual meeting of stockholders. If, however,
the date of the annual meeting of stockholders is more than 30 days before or
after such anniversary date, notice by a stockholder shall be timely only if
so delivered or so mailed and received not less than 90 days before such
annual meeting or, if later, within 10 days after the first public
announcement of the date of such annual meeting. If a special meeting of
stockholders of the corporation is called in accordance with Article II
Section 3 of these Bylaws for the purpose of electing one or more directors
to the Board of Directors or if a regular meeting other than an annual
meeting is held, for a stockholder's notice of nominations to be timely it
must be delivered to the Secretary of the corporation, or mailed and received
at the principal executive office of the corporation, not less than 90 days
before such special meeting or such regular meeting or, if later, within 10
days after the first public announcement of the date of such special meeting
or such regular meeting. Except to the extent otherwise required by law, the
adjournment of a regular or special meeting of stockholders shall not
commence a new time period for the giving of a stockholder's notice as
described above.
(b) CONTENT OF NOTICE. A stockholder's notice of nomination
for a regular or special meeting of stockholders shall set forth (x) as to
each person whom the stockholder proposes to nominate for election or
re-election as a director: (i) such person's name, (ii) all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended, including Rule 14a-11 thereof, or any successor thereto,
and (iii) such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected; and (y) as to the
stockholder giving the notice: (i) the name and address, as they appear on
the corporation's books, of such stockholder, (ii) the class or series (if
any) and number of shares of the corporation that are beneficially owned by
such stockholder and (iii) a representation that the stockholder is a holder
of record of shares of the corporation entitled to vote for the election of
directors and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice. At the request of
the Board, any person nominated by the Board for election as a director shall
furnish to the Secretary of the corporation the information required to be
set forth in a stockholder's notice of nomination that pertains to a nominee.
(c) CONSEQUENCES OF FAILURE TO GIVE TIMELY NOTICE.
Notwithstanding anything in these Bylaws to the contrary, no person shall be
eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth in this Section 6. 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
in this Section 6 and, if the Chairman should so determine, the Chairman
shall so declare to the meeting, and the defective nomination shall be
disregarded.
Section 7. QUORUM AND ADJOURNMENT. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person
or represented by proxy, shall constitute a
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quorum for holding all meetings of stockholders, except as otherwise provided
by applicable law or by the Certificate of Incorporation; PROVIDED, HOWEVER,
that the stockholders present at a duly called or held meeting at which a
quorum is present may continue to transact business until adjournment
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by at least
a majority of the shares required to constitute a quorum. If it shall appear
that such quorum is not present or represented at any meeting of
stockholders, the Chairman of the meeting shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. 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
noticed. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting. The Chairman of the meeting may determine that a
quorum is present based upon any reasonable evidence of the presence in
person or by proxy of stockholders holding a majority of the outstanding
votes, including without limitation, evidence from any record of stockholders
who have signed a register indicating their presence at the meeting.
Section 8. VOTNG. In all matters, when a quorum is present at any
meeting, the vote of the holders of a majority of the capital stock having
voting power present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one upon which
by express provision of applicable law or of the Certificate of
Incorporation, a different vote is required in which case such express
provision shall govern and control the decision of such question. Such vote
may be viva voce or by written ballot; PROVIDED, HOWEVER, that the Board may,
in its discretion, require a written ballot for any vote, and further
provided that all elections for directors must be by written ballot upon
demand made by a stockholder at any election and before the voting begins.
Unless otherwise provided in the Certificate of Incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder.
Section 9. RECORD DATE. The Board may fix, in advance, a record date
for the determination of the stockholders entitled to notice of any meeting
or to vote or entitled to receive payment of any dividend or other
distribution, or any allotment of rights, or to exercise rights in respect of
any other lawful actions. The record date so fixed shall be not more than
sixty (60) days nor less than ten (10) days prior to the date of the meeting
nor more than sixty (60) days prior to any other action.
Section 10. CONSENT OF ABSENTEES; WAIVER OF NOTICE. The transactions
of any meeting of stockholders, however called and noticed, and wherever
held, are as valid as though had a meeting been duly held after regular call
and notice, if a quorum is present either in person or by proxy, and if,
either in person or by proxy, and if, either before or after the meeting,
each of the persons entitled to vote, not present in person or by proxy,
signs a written waiver of notice, or a consent to the holding of the meeting
or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Neither the business to be transacted at nor the
purpose of any regular or special meeting of stockholders need be specified
in any written waiver of notice.
Section 11. PROXIES. Every person entitled to vote shares has the
right to do so either in person or by one or more persons authorized by a
written proxy executed by such stockholder and filed with the Secretary. Any
proxy duly executed is not revoked and continues in full force and effect
until revoked by the person executing it prior to the vote pursuant thereto
by a writing delivered to the corporation stating that the proxy is revoked
or by a subsequent proxy executed by, or by attendance at the meeting;
PROVIDED,
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HOWEVER, that no proxy shall be valid after expiration of three (3) years
from the date of its execution unless otherwise provided in the proxy.
Section 12. JUDGES OF ELECTION. The Board may appoint a Judge or
Judges of Election for any meeting of stockholders. Such Judges shall decide
upon the qualification of the voters and report the number of shares
represented at the meeting and entitled to vote, shall conduct the voting and
accept the votes and when the voting is completed shall ascertain and report
the number of shares voted respectively for and against each position upon
which a vote is taken by ballot. The Judges need not be stockholders, and
any officer of the corporation may be a Judge on any position other than a
vote for or against a proposal in which such person shall have a material
interest.
Section 13. STOCKHOLDER LISTS. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing
the address of each stockholder and the number of shares registered in the
name of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting or at the place of the meeting, and
the list shall also be available at the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
ARTICLE III. DIRECTORS.
Section 1. POWERS. Subject to the limitations of the Certificate of
Incorporation or these Bylaws or the Delaware General Corporation Law
relating to actions required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction
of the Board. The Board may delegate the management of the day-to-day
operation of the business of the corporation to management or other persons
provided that the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised under the ultimate direction of
the Board.
Section 2. NUMBER OF DIRECTORS. The authorized number of directors
of the corporation shall be fixed from time to time by resolution adopted by
the Board.
Section 3. ELECTION AND TERM OF OFFICE. Directors shall be elected
at the annual meeting of stockholders and each director shall hold office
until his successor is elected and qualified or until his death, retirement,
earlier resignation or removal.
Section 4. VACANCIES. Any director may resign effective upon giving
written notice to the Chairman of the Board, the Chief Executive Officer, the
President, Secretary or the Board, unless the notice specifies a later time
for the effectiveness of such resignation. Any vacancy in the Board or
increase in the authorized number of directors may be filled for the
unexpired term by a majority of the directors then in office. When one or
more directors shall resign from the Board, effective at a future date, a
majority of the directors then in office may fill such vacancy or vacancies
to take effect when such resignation or resignations shall become effective.
Section 5. PLACE OF MEETING. Regular or special meetings of the Board
shall be held at any place designated from time to time by the Board. In the
absence of such designation, regular meetings shall be held at the principal
office of the corporation.
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Section 6. REGULAR MEETINGS. Regular meetings of the Board shall be
held without call at such dates, times and places as the Board may establish
from time to time. Call and notice of all regular meetings of the Board are
hereby dispensed with.
Section 7. SPECIAL MEETINGS. Special meetings of the Board for any
purpose or purposes may be called at any time by the Chairman of the Board,
the Chief Executive Officer, the President or the Secretary or by any two (2)
directors.
Special meetings of the Board shall be held upon four (4) days'
written notice or forty-eight (48) hours' notice given personally or by
telephone, facsimile transmission or other similar means of communication.
Any such notice shall be addressed or delivered to each director at such
director's address as it is shown upon the records of the corporation or as
may have been given to the corporation by the director for purposes of notice
or, if such address is not shown on such records or is not readily
ascertainable, at the place in which the meetings of the directors are
regularly held.
Notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States mail, postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone or wireless,
to the recipient or to a person at the office of the recipient who the person
giving the notice has reason to believe will promptly communicate it to the
recipient.
Section 8. QUORUM. A majority of the whole Board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the directors in office shall constitute a quorum, PROVIDED,
HOWEVER, that such majority shall constitute at least one-third of the whole
Board. Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall be regarded
as the act of the Board, unless a greater number be required by law or by the
Certificate of Incorporation. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
directors, if any action is approved by at least a majority of the required
quorum for such meeting.
Section 9. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Members of the Board may participate in a meeting through use of conference
telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another.
Section 10. WAIVER OF NOTICE. The transactions of any meeting of the
Board, however called and noticed, and wherever held, are as valid as though
a meeting had been duly held after regular call and notice if a quorum be
present and if, either before or after the meeting, each of the directors not
present signs a written waiver of notice, a consent to holding such meeting
or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 11. ADJOURNMENT. A majority of the directors present, whether
or not a quorum is present, may adjourn any directors' meeting to another time
and place. Notice of the time and place of holding an adjourned meeting need
not be given to absent directors if the time and place be fixed at the meeting
adjourned. If the meeting is adjourned for more than twenty-four (24) hours,
notice of any adjournment to another time or place shall be given prior to the
time of the adjourned meeting to the directors who were not present at the time
of the adjournment.
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Section 12. FEES AND COMPENSATION. Directors and members of
committees may receive such compensation, if any, for their services, and
such reimbursement for expenses, as may be fixed or determined by the Board.
Section 13. ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the Board or committee thereof may be taken without a meeting if all
members of the Board or committee shall individually or collectively consent in
writing to such action. Such consent or consents shall have the same effect as
a unanimous vote of the Board or committee and shall be filed with the minutes
of the proceedings of the Board or committee.
Section 14. COMMITTEES. The Board may appoint one (1) or more
committees, each consisting of two (2) or more directors, and delegate to such
committees any of the authority of the Board as the Board may lawfully delegate
pursuant to the Delaware General Corporation Law.
Any such committee must be appointed by resolution adopted by a majority
of the whole board of directors and may be designated an Executive Committee or
by such other name as the Board shall specify. The Board shall have the power
to prescribe the manner in which the proceedings of any such committee shall be
conducted. In the absence of any such prescription, such committee shall have
the power to prescribe the manner in which its proceedings shall be conducted.
Unless the Board or such committee shall otherwise provide, the regular and
special meetings and other actions of any such committee shall be governed by
the provisions of this Article applicable to meetings and actions of the Board.
Minutes shall be kept of each meeting of each committee.
Section 15. RIGHTS OF INSPECTION. Every director shall have the
absolute right at any reasonable time to inspect and copy all the books, records
and documents of every kind and to inspect physical properties of the
corporation and also of its subsidiary corporations, domestic or foreign. Such
inspection by a director may be made in person or by agent or attorney and
includes the right to copy and obtain extracts.
ARTICLE IV. OFFICERS.
Section 1. OFFICERS. The officers of the corporation shall be a
Chairman of the Board, a Chief Executive Officer, a President, a Secretary and a
Chief Financial Officer; PROVIDED, HOWEVER, that in its discretion the Board may
determine not to appoint any one or more of such officers. The corporation may
also have, at the discretion of the Board, one or more Vice Presidents, one or
more Assistant Secretaries, one or more Financial Officers, and such other
officers as may be elected or appointed in accordance with the provisions of
Section 2 of this Article.
Section 2. APPOINTMENT OF OFFICERS. The officers of the
corporation shall be appointed by the Board of Directors or the Chairman of the
Board. Each of these officers shall hold office for such period and shall have
such authority and perform such duties as are prescribed by these Bylaws or
determined from time to time by the Board of Directors or the Chairman of the
Board.
Section 3. REMOVAL AND RESIGNATION. Any officer may be removed, with
or without cause, by the Board of Directors at any time or, except in the
case of an officer chosen by the Board, by any officer upon whom such power
of removal may be conferred by the Board. Any such removal shall be without
prejudice to the rights, if any, of the officer under any contract of
employment of the officer.
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Any officer may resign at any time by giving written notice to the
corporation, but without prejudice to the rights, if any, of the corporation
under any contract to which the officer is a party. Any such resignation shall
take effect at the date of the 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 4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws for regular election or appointment to such
office.
Section 5. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the stockholders and at all meetings of the Board and
shall have such other powers and duties as may from time to time be assigned by
the Board.
Section 6. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer,
subject to the control of the Board, the committees of the Board and the
Chairman of the Board, is the general manager of the corporation. The Chief
Executive Officer shall have supervising authority over and may exercise general
executive power concerning the supervision, direction and control of the
business and officers of the corporation, with the authority from time to time
to delegate to the President and other officers such executive powers and duties
as the Chief Executive Officer may deem advisable. In the absence of the
Chairman of the Board, the Chief Executive Officer shall preside at all meetings
of the Board and the stockholders.
Section 7. PRESIDENT. The President is the chief operating officer
of the corporation and, subject to the control of the Board, the committees of
the Board, the Chairman of the Board and the Chief Executive Officer, has
supervisory authority over and may exercise general executive powers concerning
the operations, business and subordinate officers of the corporation, with the
authority from time to time to delegate to other officers such executive powers
and duties as the President may deem advisable. In the absence of the Chairman
of the Board and the Chief Executive Officer, the President shall preside at all
meetings of the stockholders and at all meetings of the Board. The President
has the general powers and duties of management usually vested in the office of
President of a corporation and such other powers and duties as may be prescribed
by the Board.
Section 8. VICE PRESIDENTS. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board or,
if not ranked, the Vice President designated by the Board, shall perform all
duties of the President and, when so acting, shall have all the powers of, and
be subject to all the restrictions upon, the President. The Vice Presidents
shall have such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the Board.
Section 9. SECRETARY. The Secretary shall keep or cause to be
kept, at the principal office and such other place as the Board may order, a
book of minutes of all meetings of stockholders, the Board and its
committees, with the time and place of holding, whether regular or special,
and if special, how authorized, the notice thereof given, the names of those
present at Board and committee meetings, and the number of shares present or
represented at stockholders' meetings, and the proceedings thereof. The
Secretary shall keep, or cause to be kept, a copy of the Bylaws of the
corporation at the principal office or business office.
The Secretary shall keep, or cause to be kept, at the principal office a
share register, or a duplicate share register, showing the name of the
stockholders and their addresses, the number and classes of
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shares held by each, the number and date of certificates issued for the same,
and the number and date of cancellation of every certificate surrendered for
cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the Board and of any committees thereof required by
these Bylaws or by law to be given, shall keep the seal of the corporation in
safe custody, and shall have such other powers and perform such other duties as
may be prescribed by the Board.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the corporation. The
books of account shall at all times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables
in the name and to the credit of the corporation with such depositories as may
be designated by the Board. The Chief Financial Officer shall disburse the
funds of the corporation as may be ordered by the Board, shall render to the
Chief Executive Officer and directors, whenever they request it, an account of
all transactions as Chief Financial Officer and of the financial condition of
the corporation, and shall have such other powers and perform such other duties
as may be prescribed by the Board.
The Financial Officer or Officers, who are subordinate to the Chief
Financial Officer, if any, shall, in the absence or disability of the Chief
Financial Officer, or at his request, or if a vacancy shall exist perform his
duties and exercise his powers and authority, and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
Section 11. CONTROLLER. The Controller is the Chief Accounting Officer
of the corporation. The Controller shall keep and maintain, or cause to be kept
and maintained, adequate and correct accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, surplus and surplus shares.
The Controller is responsible for the formulation of the corporation's
accounting policies, procedures and practices, and the preparation of the
corporation's financial reports. The Controller shall establish and administer
a plan for the financial control of the corporation and compare performance with
that plan. The Controller shall have such other powers and duties as the Board
of Directors may from time to tine prescribe.
ARTICLE V. STOCK.
Section 1. FORM OF STOCK CERTIFICATE. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of, the corporation by the Chairman or Vice-Chairman of the Board of
Directors, if any, or by the Chief Executive Officer, the President or a Vice
President, and by the Chief Financial Officer or a subordinate Financial
Officer, or the Secretary or an Assistant Secretary certifying the number of
shares owned in the corporation. Any or all of the signatures on the
certificate may be a facsimile signature. If any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation with
the same effect as if such person were such officer, transfer agent or
registrar at the date of the issuance.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such
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preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock. Except as otherwise provided in Section 202
of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate a
statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights.
Section 2. TRANSFERS OF STOCK. Upon surrender of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the corporation
to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board may
direct a new certificate or certificates be issued in place of any
certificate theretofore issued alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of the fact by the person claiming
the certificate to be lost, stolen or destroyed. When authorizing such issue
of a new certificate, the Board may, in its discretion and as a condition
precedent to the issuance, require the owner of such certificate or
certificates, or such person's legal representative, to 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 lost, stolen or destroyed
certificate.
Section 4. REGISTERED STOCKHOLDERS. The corporation shall be
entitled to treat the holder of record of any share or shares of stock of the
corporation as the holder in fact thereof and shall not be bound to recognize
any equitable or other claim to or interest in such share on the part of any
other person, whether or not it shall have express or other notice thereof,
except as expressly provided by applicable law.
ARTICLE VI. OTHER PROVISIONS.
Section 1. ENDORSEMENT OF DOCUMENTS; CONTRACTS. Subject to the
provisions of applicable law, any note, mortgage, evidence of indebtedness,
contract, share certificate, conveyance or other instrument in writing and any
assignment or endorsements thereof executed or entered into between the
corporation and any other person, when signed by the Chairman of the Board, the
Chief Executive Officer, the President or any Vice President and the Secretary,
any Assistant Secretary, the Chief Financial Officer or any Assistant Chief
Financial Officer of the corporation shall be valid and binding on the
corporation in the absence of actual knowledge on the part of the other person
that the signing officers had no authority to execute the same. Any such
instruments may be signed by any other person or persons and in such manner as
from time to time shall be determined by the Board, and, unless so authorized by
the Board, no officer, agent or employee shall have any power or authority to
bind the corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or amount.
Section 2. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, Secretary or any other officer or officers authorized by the Board or
the Chairman of the Board are each authorized to vote, represent and exercise on
behalf of the corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of the corporation. The
authority herein granted may be exercised either by any such officer or by any
other person authorized so to do by proxy or power of attorney duly executed by
said officer.
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Section 3. SEAL. The corporation shall have no corporate seal.
Section 4. FISCAL YEAR. The fiscal year of the corporation
shall be fixed by resolution of the Board.
Section 5. DIVIDENDS. Dividends on the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board at any regular or special meeting, pursuant to
law, and may be paid in cash, in property or in shares of capital stock.
Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves 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 determine to be in the best interest of
the corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
ARTICLE VII. INDEMNIFICATION.
The corporation shall indemnify such persons for such liabilities in
such manner under such circumstances and to such extent as permitted by the
Delaware General Corporation Law, as now enacted or hereafter amended. The
Board may authorize the purchase and maintenance of insurance and/or the
execution of individual agreements for the purpose of such indemnification,
and the corporation shall advance all reasonable costs and expenses
(including attorneys' fees) incurred in defending any action, suit or
proceeding to all persons entitled to indemnification under this Article, all
in the manner, under the circumstances and to the extent permitted by the
Delaware General Corporation Law, as now enacted or hereafter amended.
ARTICLE VIII. AMENDMENTS.
These Bylaws may be amended or repealed in accordance with the
Certificate of Incorporation.
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