Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS OF
DISCOVERY LABORATORIES, INC.
(A Delaware Corporation)
ARTICLE I
Meetings of Stockholders
Section 1. Annual Meeting. The annual meeting of the stockholders of Discovery
Laboratories, Inc. (the "Corporation"), for the election of directors and for
the transaction of such other business as may come before the meeting shall be
held at such date and time as shall be designated by the Board of Directors (the
"Board"), the Chairman of the Board or the President.
Section 2. Special Meeting. Special meetings of the stockholders, unless
otherwise prescribed by statute, may be called at any time by the Board, the
Chairman of the Board or the Chief Executive Officer. Business transacted at any
special meeting of stockholders shall be limited to matters relating to the
purpose or purposes stated in the notice of meeting.
Section 3. Notice of Meetings. Notice of the place, date and time of the holding
of each annual and special meeting of the stockholders and, in the case of a
special meeting, the purpose or purposes thereof shall be given personally or by
mail in a postage prepaid envelope to each stockholder entitled to vote at such
meeting, not less than 10 nor more than 60 days before the date of such meeting,
and, if mailed, it shall be directed to such stockholder at his or her address
as it appears on the records of the Corporation, unless such stockholder shall
have filed with the Secretary of the Corporation a written request that notices
to such stockholder be mailed to some other address, in which case it shall be
directed to the stockholder at such other address. If mailed, such notice shall
be deemed to be delivered when deposited in United States mail so addressed with
postage thereon prepaid. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend such meeting in person
or by proxy and shall not, at the beginning of such meeting, object to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a signed
waiver of notice, in person or by proxy. Unless the Board shall fix after the
adjournment a new record date for an adjourned meeting, notice of such adjourned
meeting need not be given if the time and place to which the meeting shall be
adjourned were announced at the meeting at which the adjournment is taken. At
the adjourned meeting, the Corporation may transact any business which may have
been transacted at the original meeting. If the adjournment is for more than 30
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.
Section 4. Place of Meetings. Meetings of the stockholders my be held at such
place, within or without the State of Delaware, as the Board or other officer
calling the same shall specify in the notice of such meeting, or in a duly
executed waiver of notice thereof.
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Section 5. Quorum. At all meetings of the stockholders, the holders of a
majority of the votes of the shares of stock of the Corporation issued and
outstanding and entitled to vote shall be present in person or by proxy to
constitute a quorum for the transaction of any business, except when
stockholders are required to vote by class, in which event a majority of the
issued and outstanding shares of the appropriate class shall be present in
person or by proxy, or except as otherwise provided by statute or in the
Corporation's Restated Certificate of Incorporation (the "Certificate of
Incorporation"). In the absence of a quorum, the holders of a majority of the
votes of the shares of stock present in person or by proxy and entitled to vote,
or if no stockholder entitled to vote is present, then the chairman of the
meeting, as set forth in Section 6 below, may adjourn the meeting from time to
time. At any such adjourned meeting at which a quorum may be present, any
business may be transacted which might have been transacted at the meeting as
originally called.
Section 6. Organization. At each meeting of the stockholders, the Chairman of
the Board, or in his absence or inability to act, the President, or in the
absence or inability to act of the Chairman of the Board and the President or an
Executive Vice President, or in the absence of all the foregoing, any person
chosen by a majority of those stockholders present shall act as chairman of the
meeting. The Secretary, or, in his absence or inability to act, the Assistant
Secretary or any person appointed by the chairman of the meeting shall act as
secretary of the meeting and keep the minutes thereof.
Section 7. Order of Business. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
Section 8. Voting. Except as otherwise provided by statute, the Certificate of
Incorporation or any certificate duly filed in the office of the Secretary of
State of the State of Delaware, each holder of record of shares of stock of the
Corporation having voting power shall be entitled at each meeting of the
stockholders to one vote for every share of such stock standing in his name on
the record of stockholders of the Corporation on the date fixed by the Board as
the record date for the determination of the stockholders who shall be entitled
to notice of and to vote at such meeting; or if such record date shall not have
been so fixed, then at the close of business on the day next preceding the day
on which the meeting is held; or each stockholder entitled to vote at any
meeting of stockholders may authorize another person or persons to act for him
by a proxy signed by such stockholder or his attorney-in-fact. Any such proxy
shall be delivered to the secretary of such meeting at or prior to the time
designated in the order of business for so delivering such proxies. No proxy
shall be valid after the expiration of three years from the date thereof, unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the stockholder executing it, except in those cases where an irrevocable
proxy is permitted by law. Except as otherwise provided by statute, these
Amended and Restated By-Laws (the "By-Laws"), or the Certificate of
Incorporation, any corporate action to be taken by vote of the stockholders
shall be authorized by a majority of the total votes, or when stockholders are
required to vote by class by a majority of the votes of the appropriate class,
cast at a meeting of stockholders by the holders of shares present in person or
represented by proxy and entitled to vote on such action. Unless required by
statute, or determined by the chairman of the meeting to be advisable, the vote
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 by his proxy, if there be
such proxy, and shall state the number of shares voted.
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Section 9. Nominations. The procedures governing stockholder nominees of
candidates to elections of the Board of Directors or to fill vacancies, as
applicable, shall be administered by the Company's Nomination Committee. For
nominations for election to the Board or for other business to be properly
brought by a stockholder before a meeting of stockholders, the stockholder must
first have given timely written notice thereof to the Secretary of the Company.
In addition to other applicable requirements, to be timely, a notice of
nominations or other business to be brought before an annual meeting of
stockholders must be substantially in the form set forth below and delivered to
the Secretary not later than the date set forth in the "Stockholder Proposals"
section of the Proxy Statement delivered by the Company to its stockholders, and
filed with the Securities and Exchange Commission, in connection with the
preceding year's annual meeting. If the Company did not deliver a Proxy
Statement in connection with the preceding year's annual meeting, such notice
must be delivered not less than 120 nor more than 150 days prior to the first
anniversary of the date of the Company's proxy statement delivered to
stockholders in connection with the preceding year's annual meeting; provided,
that if (A) the date of an annual meeting is more than 30 days before or more
than 60 days after such anniversary, or (B) no proxy statement was delivered to
stockholders by the Company in connection with the preceding year's annual
meeting, all notices must be delivered not earlier than 90 days prior to such
annual meeting and not later than the later of (i) 60 days prior to the annual
meeting or (ii) 10 days following the date on which public announcement of the
date of such annual meeting is first made by the Company. With respect to
special meetings of stockholders, such notice must be delivered to the Secretary
not more than 90 days prior to such meeting and not later than the later of (i)
60 days prior to such meeting or (ii) 10 days following the date on which public
announcement of the date of such meeting is first made by the Company. Any
stockholder delivering notice to the Secretary under this Section 9, Article I
must be a stockholder of record on the date such notice is delivered. The
Secretary shall deliver the notice to the Nomination Committee. No stockholder
nominee may be a candidate for election at any meeting of stockholders or
otherwise elected to fill a vacancy in the Board unless such person has been
approved by the Nomination Committee and was nominated in accordance with the
procedures set forth in this Section 9, Article I. If the facts warrant, the
Board, or the chairman of a stockholders meeting at which Directors are to be
elected may determine and declare that a nomination was not made in accordance
with the foregoing procedure and, if it is so determined, no election may be
made with respect to such nominee. The right of stockholders to make nominations
pursuant to the foregoing procedure is subject to the superior rights, if any,
of the holders of any class or series of stock having a preference over the
common stock. The procedures set forth in this Section 9 of Article I for
nomination for the election of Directors by stockholders are in addition to, and
not in limitation of, any procedures now in effect or hereafter adopted by or at
the direction of the Board or any committee thereof.
If a stockholder attempts to nominate a candidate to the Board and complies with
the procedure set forth in this Section 9, Article I but the Nomination
Committee rejects such stockholder's nomination, such stockholder may nominate
such candidate notwithstanding the decision of the Nomination Committee at the
next election of Directors after such candidate was rejected by the Nomination
Committee if such stockholder delivers to the Secretary written requests that
such person be nominated to the Board from stockholders holding at least 50% of
the eligible votes as of the record date of such election.
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To be in proper written form, each such notice to the Secretary delivered in
connection with a stockholder nomination must set forth as to each person whom
the stockholder proposes to nominate for election as a director:
(i) the name, age, business address and residence address of the person;
(ii) the principal occupation or employment of the person;
(iii) the class or series and number of shares of capital stock of the
Company that are owned beneficially or of record by the person; and
(iv) any other information relating to the person that would be required
to be disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of Directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder.
Each such notice to the Secretary must also set forth as to the stockholder
giving the notice:
(i) the name and record address of such stockholder;
(ii) the class or series and number of shares of capital stock of the
Company that are owned beneficially or of record by such stockholder;
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be made
by such stockholder;
(iv) a representation that such stockholder intends to appear in person or
by proxy at the meeting to nominate the persons named in its notice; and
(v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to
be made in connection with solicitations of proxies for election of
Directors pursuant to Section 14 of the Securities Exchange Act of 1934
(the "Exchange Act") and the rules and regulations promulgated thereunder.
All notices delivered to the Secretary in connections must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a Director if elected.
Section 10. Stockholder Proposals. The procedures governing stockholder
proposals of business to be conducted at meetings of stockholders shall be
administered by the Company's Nomination Committee. At any meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before such meeting. To be properly brought before a meeting, business
must be: (a) as specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board; (b) otherwise properly brought before
the meeting by or at the direction of the Board; or (c) otherwise properly
brought before the meeting by a stockholder. For business to be properly brought
by a stockholder before a meeting of stockholders, the stockholder must first
have given timely written notice thereof to the Secretary of the Company. In
addition to other applicable requirements set forth in the Exchange Act, to be
timely, a notice of other business to be brought before an annual meeting of
stockholders must be substantially in the form set forth below and delivered to
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the Secretary not later than the date set forth in the "Stockholder Proposals"
section of the Proxy Statement delivered by the Company to its stockholders, and
filed with the Securities and Exchange Commission, in connection with the
preceding year's annual meeting. If the Company did not deliver a Proxy
Statement in connection with the preceding year's annual meeting, such notice
must be delivered not less than 120 nor more than 150 days prior to the first
anniversary of the date of the Company's proxy statement delivered to
stockholders in connection with the preceding year's annual meeting; provided,
that if (A) the date of an annual meeting is more than 30 days before or more
than 60 days after such anniversary, or (B) no proxy statement was delivered to
stockholders by the Company in connection with the preceding year's annual
meeting, all notices must be delivered not earlier than 90 days prior to such
annual meeting and not later than the later of (i) 60 days prior to the annual
meeting or (ii) 10 days following the date on which public announcement of the
date of such annual meeting is first made by the Company. With respect to
special meetings of stockholders, such notice must be delivered to the Secretary
not more than 90 days prior to such meeting and not later than the later of (i)
60 days prior to such meeting or (ii) 10 days following the date on which public
announcement of the date of such meeting is first made by the Company. Any
stockholder delivering notice to the Secretary under this Section 10 of Article
I must be a stockholder of record on the date such notice is delivered. The
Nomination Committee must approve each stockholder proposal of other business
before such proposal may be voted on at any meeting of stockholders or
otherwise. No stockholder proposal of other business before such proposal may be
voted on at any meeting of stockholders or otherwise unless such proposal was
approved in accordance with the procedures set forth in this Section 10 of
Article I. The procedures set forth in this Section 10 of Article I for
nomination for the election of Directors by stockholders are in addition to, and
not in limitation of, any procedures now in effect or hereafter adopted by or at
the direction of the Board or any committee thereof. If the chairman of a
meeting of stockholders determines that business was not properly brought before
the meeting in accordance with the foregoing procedures, the chairman shall
declare to the meeting that the business was not properly brought before the
meeting and such business shall not be transacted.
To be in proper written form, a stockholder's notice to the Secretary must set
forth as to each matter such stockholder proposes to bring before the meeting:
(i) a brief description of the business desired to be brought before the
meeting and the reasons for conducting such business at the meeting;
(ii) the name and record address of such stockholder;
(iii) the class or series and number of shares of capital stock of the
Company that are owned beneficially or of record by such stockholder;
(iv) a description of all arrangements or understandings between such
stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business;
(v) a representation that such stockholder intends to appear in person or
by proxy at the meeting to bring such business before the meeting; and
(vi) any other information that is required by law to be provided by the
stockholder in his capacity as proponent of a stockholder proposal.
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Section 11. List of Stockholders. The officer who has charge of the stock ledger
of the Corporation, or the transfer agent of the Corporation's stock, if there
be one then acting, shall prepare and make, at least 10 days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
10 days prior to the meeting, either at a place within the city where the
meeting is to be held, at the place where the meeting is to be held or at the
office of the transfer agent. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 12. Inspectors. The Board may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed or if any of
them shall fail to appear or act, the chairman of the meeting may, and on the
request of any stockholder entitled to vote thereat shall, appoint inspectors.
Each inspector, before entering upon the discharge of his duties, shall take and
sign an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors
shall determine the number of shares outstanding and the voting power of each,
the number of shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. Upon the request of the chairman of the meeting or
any stockholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for the office
of director shall act as inspector of an election of directors. Inspectors need
not be stockholders.
Section 13. Consent of Stockholders in Lieu of Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required by Subchapter
VII of the General Corporation Law of the State of Delaware, to be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the corporation by
delivery to its registered office in this State, its principal place of
business, or an officer or agent of the corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
a corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested.
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ARTICLE II
Board Of Directors
Section 1. General Powers. The business and affairs of the Corporation shall be
managed by the Board. The Board may exercise all such authority and powers of
the Corporation and do all such lawful acts and things as are not by statute or
the Certificate of Incorporation or by these By-Laws directed or required to be
exercised or done by the stockholders.
Section 2. Number, Qualifications, Elections and Term of Office. The number of
directors of the Corporation ("Directors") shall be fixed from time to time by
the vote of a majority of the entire Board then in office and the number thereof
may thereafter by like vote be increased or decreased to such greater or lesser
number (not less than three) as may be so provided, subject to the provisions of
Section 11 of this Article II. All of the Directors shall be of full age and
need not be stockholders. Except as otherwise provided by statute or these
By-Laws, the Directors shall be elected at the annual meeting of the
Stockholders for the election of Directors at which a quorum is present, and the
persons receiving a plurality of the votes cast at such meeting shall be
elected. Each Director shall hold office until the next annual meeting of the
stockholders and until his successors shall have been duly elected and
qualified, or until such Director's death, or until such Director shall have
resigned, or have been removed, as hereinafter provided in these By-Laws, or as
otherwise provided by statute or the Certificate of Incorporation.
Section 3. Place of Meetings. Meetings of the Board may be held at such place,
within or without the State of Delaware, as the Board may from time to time
determine or as shall be specified in the notice or waiver of notice of such
meeting.
Section 4. Annual Meeting. The Board shall meet for the purpose of organization,
the election or appointment of officers and the transaction of other business,
as soon as practicable after each annual meeting of the stockholders, on the
same day and at the same place where such annual meeting shall be held. Notice
of such meeting need not be given. Such meeting may be held at any other time or
place (within or without the State of Delaware) which shall be specified in a
notice thereof given as hereinafter provided in Section 7 of this Article II.
Section 5. Regular Meetings. Regular meetings of the Board shall be held at such
time and place as the Board may from time to time determine. If any day fixed
for a regular meeting shall be a legal holiday at the place where the meeting is
to be held, then the meeting which would otherwise be held on that day shall be
held at the same hour on the next succeeding business day. Notice of regular
meetings of the Board need not be given except as otherwise required by statute
or these By-Laws.
Section 6. Special Meetings. Special meetings of the Board may be called by the
Chairman of the Board, two or more directors or the President of the
Corporation.
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Section 7. Notice of Meetings. Notice of each special meeting of the Board (and
of each regular meeting for which notice shall be required) shall be given by
the Secretary as hereinafter provided in this Section 7 of Article II, in which
notice shall be stated the time and place (within or without the State of
Delaware) of the meeting. Notice of each such meeting shall be delivered to each
Director either personally or by telephone, telegraph, cable or wireless, at
least 24 hours before the time at which such meeting is to be held or by
first-class mail, postage prepaid, addressed to him at his residence, or usual
place of business, at least three days before the day on which such meeting is
to be held. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail. Notice of any such meeting need not be
given to any director who shall, either before or after the meeting, submit a
signed waiver of notice or who shall attend such meeting without protesting,
prior to or at its commencement, the lack of notice to him. Except as otherwise
specifically required by these By-Laws, a notice or waiver of notice of any
regular or special meeting need not state the purposes of such meeting.
Section 8. Quorum and Manner of Acting. A majority of the entire Board shall be
present in person at any meeting of the Board in order to constitute a quorum
for the transaction of business at such meeting, and, except as otherwise
expressly required by statute or the Certificate of Incorporation, the act of a
majority of the Directors present at any meeting at which a quorum is present
shall be the act of the Board. Any one or more members of the Board or any
committee thereof may participate in a meeting of the Board or such committee by
means of a conference telephone or similar communications equipment allowing all
participants in the meeting to hear each other at the same time and
participation by such means shall constitute presence in person at a meeting. In
the absence of a quorum at any meeting of the Board, a majority of the directors
present thereat, or if no director be present, the Secretary, may adjourn such
meeting to another time and place, or such meeting, unless it be the annual
meeting of the Board, need not be held. At any adjourned meeting at which a
quorum is present, any business may be transacted which might have been
transacted at the meeting as originally called. Except as provided in Article
III of these By-Laws, the directors shall act only as a Board and the individual
directors shall have no power as such.
Section 9. Organization. At each meeting of the Board, the Chairman of the Board
(or, in his or her absence or inability to act, the President, or, in his or her
absence or inability to act, another Director chosen by a majority of the
Directors present) shall act as chairman of the meeting and preside thereat. The
Secretary (or, in his or her absence or inability to act, any person appointed
by the chairman of the meeting) shall act as secretary of the meeting and keep
the minutes thereof.
Section 10. Resignations. Any Director may resign at any time by giving written
notice of his resignation to the Board, the Chairman of the Board, the President
or the Secretary. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt; and unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 11. Vacancies. Vacancies, including newly created directorships, may be
filled by the decision of majority of the Directors then in office, including
those who have so resigned, shall have power to fill such vacancy or vacancies,
the vote thereon to take effect when such resignation or resignations shall
become effective, and each director so chosen shall hold office as provided in
this Section for the filling of other vacancies.
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Section 12. Removal of Directors. Except as otherwise provided in the
Certificate of Incorporation or in these By-Laws, any Director may be removed,
either with or without cause, at any time, by the affirmative vote of a majority
of the votes of the issued and outstanding shares of stock entitled to vote for
the election of the stockholders called and held for that purpose, or by a
majority vote of the Board at a meeting called for such purpose, and the vacancy
in the Board caused by any such removal may be filled by such stockholders or
Directors, as the case may be, at such meeting, and if the stockholders shall
fail to fill such vacancy, such vacancy shall be filled in the manner as
provided by these By-Laws.
Section 13. Compensation. The Board shall have authority to fix the
compensation, including fees and reimbursement of expenses, of Directors for
services to the Corporation in any capacity, provided no such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 14. Action by the Board. To the extent permitted under the laws of the
State of Delaware, any action required or permitted to be taken at any meeting
of the Board or of any committee thereof may be taken without a meeting if all
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of the Board or committee.
ARTICLE III
Executive and Other Committees
Section 1. Executive and Other Committees. The Board may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of two or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
Committee. Any such committee, to the extent provided in the resolution, shall
have and may exercise the powers of the Board in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it, provided, however, that in the
absence or disqualification of any member of such committee or committees, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place of any such
absent or disqualified member. Each committee shall keep minutes of its
proceedings and shall, report such minutes to the Board when required. All such
proceedings shall be subject to revision or alteration by the Board; provided,
however, that third parties shall not be prejudiced by such revision or
alteration.
Section 2. General. A majority of any committee may determine its action and fix
the time and place of its meetings, unless the Board shall otherwise provide.
Notice of such meetings shall be given to each member of the committee in the
manner provided for in Article II, Section 7. The Board shall have the power at
any time to fill vacancies in, to change the membership of, or to dissolve any
such committee. Nothing herein shall be deemed to prevent the Board from
appointing one or more committees consisting in whole or in part of persons who
are directors of the Corporation; provided, however, that no such committee
shall have or may exercise any authority of the Board.
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ARTICLE IV
Officers
Section 1. Number and Qualifications. The officers of the Corporation shall
include the Chairman of the Board, the President, one or more Vice Presidents
(one or more of whom may be designated an Executive Vice President or a Senior
Vice President), the Treasurer and the Secretary. Any two or more offices may be
held by the same person. Such officers shall be elected or appointed from time
to time by the Board, each to hold office until the meeting of the Board
following the next annual meeting of the stockholders, or until his or her
successor shall have been duly elected or appointed and shall have qualified, or
until such Officer's death, or until such Officer shall have resigned, or have
been removed, as hereinafter provided in these By-Laws. The Board may from time
to time elect a Vice Chairman of the Board, and the Board may from time to time
elect, or the Chairman of the Board, or the President may appoint, such other
officers (including one or more Assistant Vice Presidents, Assistant Secretaries
and Assistant Treasurers), as may be necessary or desirable for the business of
the Corporation. Such other officers and agents shall have such duties and shall
hold their offices for such terms as may be prescribed by the Board or by the
appointing.
Section 2. Resignation. Any officer of the Corporation may resign at any time by
giving written notice of his resignation to the Board, the Chairman of the
Board, the President or the Secretary. Any such resignation shall take effect at
the time specified therein or, if the time when it shall become effective shall
not be specified therein, immediately upon its receipt; and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 3. Removal. Any officer or agent of the Corporation may be removed,
either with or without cause, at any time, by the vote of the majority of the
entire Board at any meeting of the Board or, except in the case of an officer or
agent elected or appointed by the Board, by the Chairman of the Board or the
President. Such removal shall be without prejudice to the contractual rights, if
any, of the person so removed.
Section 4. Vacancies. A vacancy in any office, whether arising from death,
disability, resignation, removal or any other cause, may be filled for the
unexpired portion of the term of the office which shall be vacant, in the manner
prescribed in these By-Laws for the regular election or appointment to such
office.
Section 5. a. The Chairman of the Board. The Chairman of the Board, if one be
elected, shall, if present, preside at each meeting of the stockholders and of
the Board and shall be an ex officio member of all committees of the Board. He
shall perform all duties incident to the office of Chairman of the Board and
such other duties as may from time to time be assigned to him by the Board.
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b. The Vice Chairman of the Board. The Vice Chairman of the Board, if
one be elected, shall have such powers and perform all such duties as from time
to time may be assigned to him by the Board or the Chairman of the Board and,
unless otherwise provided by the Board, shall in the case of the absence or
inability to act of the Chairman of the Board, perform the duties of the
Chairman of the Board and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the Chairman of the Board.
Section 6. The President. The President shall be the chief executive officer of
the Corporation and shall have general and active supervision and direction over
the business and affairs of the Corporation and over its several officers,
subject, however, to the direction of the Chairman of the Board and the control
of the Board. If no Chairman of the Board is elected or at the request of the
Chairman of the Board, or in the case of his absence or inability to act, unless
there be a Vice Chairman of the Board so designated to act, the President shall
perform the duties of the Chairman of the Board and when so acting shall have
all the powers of, and be subject to all the restrictions upon, the Chairman of
the Board. He shall perform all duties incident to the office of President and
such other duties as from time to time may be assigned to him by the Board or
the Chairman of the Board.
Section 7. Vice Presidents. Each Executive Vice President, each Senior Vice
President and each Vice President shall have such powers and perform all such
duties as from time to time may be assigned to such person by the Board, the
Chairman of the Board or the President. They shall in the order of their
seniority, have the power and may perform the duties of the Chairman of the
Board and the President.
Section 8. The Treasurer. The Treasurer shall exercise general supervision over
the receipt, custody and disbursement of corporate funds. He or she shall have
such further powers and duties as may be conferred upon him from time to time by
the President or the Board of Directors. He or she shall perform the duties of
controller if no one is elected to that office.
Section 9. The Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books provided for
the purpose, the minutes of all meetings of the Board, the
committees of the Board and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the
Corporation and affix and attest the seal to all stock certificates
of the Corporation (unless the seal be a facsimile, as hereinafter
provided) and affix and attest the seal to all other documents to be
executed on behalf of the Corporation under its seal;
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(d) see that the books, reports, statements, certificates and
other documents and records required by law to be kept and filed are
properly kept and filed; and
(e) in general, 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 Board, the Chairman of the Board, or the
President.
Section 10. Officer's Bonds or Other Security. If required by the Board, any
officer of the Corporation may be required to give a bond or other security for
the faithful performance of his duties, in such amount and with such surety or
sureties as the Board may require.
Section 11. Compensation. The compensation of the officers of the Corporation
for their services as such officers shall be fixed from time to time by the
Board; provided, however, that the Board may delegate to the Chairman of the
Board or the President the power to fix the compensation of officers and agents
appointed by the Chairman of the Board or the President, as the case may be. An
officer of the Corporation shall not be prevented from receiving compensation by
reason of the fact that he is also a director of the Corporation, but any such
officer who shall also be a Director shall not have any vote in the
determination of the amount of compensation paid to him.
ARTICLE V
Indemnification
The Corporation shall, to the fullest extent permitted by the laws of the state
of Delaware, indemnify any and all persons whom it shall have power to indemnify
against any and all of the costs, expenses, liabilities or other matters
incurred by them by reason of having been officers or Directors of the
Corporation, any subsidiary of the Corporation or of any other corporation for
which such person acted as officer or director at the request of the
Corporation.
ARTICLE VI
Contracts, Checks, Drafts, Bank Account, Etc.
Section 1. Execution of Contracts. Except as otherwise required by statute, the
Certificate of Incorporation or these By-Laws, any contracts or other
instruments may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board may, from time to time, direct. Such authority may be
general or confined to specific instances as the Board may determine. Unless
authorized by the Board or expressly permitted by these By-Laws, an officer or
agent or employee shall not have any power or authority to bind the Corporation
by any contract or engagement or to pledge its credit or to render it
pecuniarily liable for any purpose or to any amount.
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Section 2. Loans. Unless the Board shall otherwise determine, either (a) the
Chairman of the Board, the Vice Chairman of the Board or the President, singly,
or (b) a Vice President, together with the Treasurer, may effect loans and
advances at any time for the Corporation or guarantee any loans and advances to
any subsidiary of the Corporation, from any bank, trust company or other
institution, or from any firm, corporation or individual, and for such loans and
advances way make, execute and deliver promissory notes, bonds or other
certificates or evidences of indebtedness of the Corporation, or guarantee of
indebtedness of subsidiaries of the Corporation, but no officer or officers
shall mortgage, pledge, hypothecate or transfer any securities or other property
of the Corporation, except when authorized by the Board.
Section 3. Checks, Drafts, Etc. All checks, drafts, bills of exchange or other
orders for the payment of money out of the funds of the Corporation, and all
notes or other evidences of indebtedness of the Corporation, shall be signed in
the name and on behalf of the Corporation by such persons and in such manner as
shall from time to time be authorized by the Board.
Section 4. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board may from time to time
designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may from time to time be delegated by the
Board. For the purpose of deposit and for the purpose of collection for the
account of the Corporation, checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation my be endorsed, assigned
and delivered by any officer or agent of the Corporation, or in such manner as
the Board may determine by resolution.
Section 5. General and Special Bank Accounts. The Board may, from time to time,
authorize the opening and keeping of general and special bank accounts with such
banks, trust companies or other depositories as the Board may designate or as
may be designated by any officer or officers of the Corporation to whom such
power of designation may from time to time be delegated by the Board. The Board
may make such special rules and regulations with respect to such bank accounts,
not inconsistent with the provisions of these By-Laws, as it may deem expedient.
Section 6. Proxies in Respect of Securities of Other Corporations. Unless
otherwise provided by resolution adopted by the Board, the Chairman of the
Board, the President or a Vice President may from time to time appoint an
attorney or attorneys or agent or agents of the Corporation, in the name and on
behalf of the Corporation, to cast the votes which the Corporation may be
entitled to cast as the holder of stock or other securities in any other
corporation, any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
other corporation, or to consent in writing, in the name of the Corporation as
such holder, to any action by such other corporation, and may instruct the
person or persons so appointed as to the manner of casting such votes or giving
such consent, and may execute or cause to be executed, in the name and on behalf
of the Corporation, and under its corporate seal, or otherwise, all such written
proxies or other instruments as he or she may deem necessary or proper in the
premises.
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ARTICLE VII
Shares, Etc.
Section 1. Stock Certificates. Each holder of shares of stock of the Corporation
shall be entitled to have a certificate, in such form as shall be approved by
the Board, certifying the number of shares of the Corporation owned by such
stockholder. The certificates representing shares of stock shall be signed in
the name of the Corporation by (A) the Chairman or Vice Chairman of the Board or
the President or a Vice President, and (B) the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer, and sealed with the seal
of the Corporation (which seal may be a facsimile, engraved or printed);
provided, however, that where any such certificate is countersigned by a
transfer agent other than the Corporation or its employee, or is registered by a
registrar other than the Corporation or one of its employees, the signature of
the officers of the Corporation upon such certificates may be facsimiles,
engraved or printed. In case any officer who shall have signed or whose
facsimile signature has been placed upon such certificates shall have ceased to
be such officer before such certificates shall be issued, they may nevertheless
be issued by the Corporation with the same effect as if such officer were still
in office at the date of their issue.
Section 2. Books of Account and Record of Shareholders. The books and records of
the Corporation may be kept at such places within or without the state of
incorporation as the Board of Directors may from time to time determine. The
stock record books and the blank stock certificate books shall be kept by the
Secretary or by any other officer or agent designated by the Board of Directors.
Section 3. Transfer of Shares. Transfers of shares of stock of the Corporation
shall be made on the stock records of the Corporation only upon authorization by
the registered holder thereof, or by his attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary or with a transfer agent
or transfer clerk, and on surrender of the certificate or certificates for such
shares properly endorsed or accompanied by a duly executed stock transfer power
and the payment of all taxes thereon. Except as otherwise provided by applicable
law, the Corporation shall be entitled to recognize the exclusive right of a
person in whose name any share or shares stand on the record of stockholders as
the owner of such share or shares for all purposes, including, without
limitation, the rights to receive dividends or other distributions and to vote
as such owner, and the Corporation may hold any such stockholder of record
liable for calls and assessments and the Corporation shall not be bound to
recognize any equitable or legal claim to or interest in any such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof. Whenever any transfers of shares shall be made for
collateral security and not absolutely, and both the transferor and transferee
request the Corporation to do so, such fact shall be stated in the entry of the
transfer.
Section 4. Regulations. The Board may make such additional rules and
regulations, not inconsistent with these By-Laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates for shares of stock to bear
the signature or signatures of any of them.
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Section 5. Lost, Destroyed or Mutilated Certificates. The holder of any
certificate representing shares of stock of the Corporation shall immediately
notify the Corporation of any loss, destruction or mutilation of such
certificate, and the Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it which the owner thereof shall
allege to have been lost, stolen or destroyed or which shall have been
mutilated, and the Board may, in its discretion, require such owner or his legal
representative to give the Corporation a bond in such sum, limited or unlimited,
and in such form and with such surety or sureties as the Board in its absolute
discretion shall determine, to indemnify the Corporation against any claim that
way be made against it on account of the alleged loss, theft or destruction of
any such certificate, or the issuance of a new certificate. Anything herein to
the contrary notwithstanding, the Board, in its absolute discretion, may refuse
to issue any such new certificate, except pursuant to legal proceedings under
the laws of the State of Delaware.
Section 6. Fixing of Record Date. In order that the Corporation may determine
the stockholders entitled to notice of, or to vote at, any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board may fix in advance a
record date, which shall not be more than 60 nor less than 10 days before the
date of such meeting, nor more than 60 days prior to any other action. A
determination of stockholders of record entitled to notice of, or to vote at, a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE VIII
Offices
Section 1. Principal or Registered Office. The principal registered office of
the Corporation shall be at such place as may be specified in the Certificate of
Incorporation or other certificate filed pursuant to law, or if none be so
specified, at such place as may from time to time be fixed by the Board.
Section 2. Other Offices. The Corporation also may have an office or offices
other than said principal or registered office, at such place or places either
within or without the State of Delaware.
ARTICLE IX
Fiscal Year
The fiscal year of the Corporation shall be determined by the Board.
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ARTICLE X
Seal
The Board shall provide a corporate seal which shall contain the name of the
Corporation, the words "Corporate Seal" and the year and State of Delaware.
ARTICLE XI
Amendments
Section 1. Stockholders. These By-Laws may be amended or repealed, or new
By-Laws may be adopted, at any annual or special meeting of the stockholders, by
a majority of the total votes of the stockholders or when stockholders are
required to vote by class by a majority of the appropriate class, in person or
represented by proxy and entitled to vote on such action; provided, however,
that the notice of such meeting shall have been given as provided in these
By-Laws, which notice shall mention that amendment or repeal of these By-Laws,
or the adoption of new By-Laws, is one of the purposes of such meeting.
Section 2. Board of Directors. These By-Laws may also be amended or repealed or
new By-Laws may be adopted by the Board at any meeting of the Board; provided,
however, that notice of such meeting shall have been given as provided in these
By-Laws, which notice shall mention that amendment or repeal of the By-Laws, or
the adoption of new By-Laws, is one of the purposes of such meetings. By-Laws
adopted by the Board may be amended or repealed by the stockholders as provided
in Section 1 of this Article XI.
ARTICLE XII
Miscellaneous
Section 1. Interested Directors. No contract or other transaction between the
Corporation and any other corporation shall be affected and invalidated solely
by the fact that any one or more of the Directors of the Corporation is or are
interested in or is a director or officer or are directors or officers of such
other corporation, and any Director or Directors, individually or jointly, may
be a party or parties to or may be interested in any contract or transaction of
the Corporation or in which the Corporation is interested; and no contract, act
or transaction of the Corporation with any person or persons, firm or
corporation shall be affected or invalidated by the fact that any Director of
the Corporation is a party or are parties to or interested in such contract, act
or transaction, or in any way connected with such person or persons, firms or
associations, and each and every person who may become a Director of the
Corporation is hereby relieved from any liability that might otherwise exist
from contracting with the Corporation for the benefit of himself or herself, any
firm, association or corporation in which such Director may be in any way
interested.
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Section 2. Ratification. Any transaction questioned in any stockholders
derivative suit on the grounds of lack of authority, defective or irregular
execution, adverse interest of director, officer or stockholder, nondisclosure,
miscomputation, or the application of improper principles or practices of
accounting, may be ratified before or after judgment, by the Board or, by the
stockholders in case less than a quorum of Directors are qualified, and, if so
ratified, shall have the same force and effect as if the questioned transaction
had been originally duly authorized, and said ratification shall be binding upon
the Corporation and its stockholders, and shall constitute a bar to any claim or
execution of any judgment, in respect of such questioned transaction.
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