Attached files
Exhibit
3.3
BYLAWS
of
IASO
PHARMA INC.
(FORMERLY
PACIFIC BEACH BIOSCIENCES, INC.)
ARTICLE
I
OFFICES
Section
1.01 REGISTERED OFFICE. The registered office of IASO
PHARMA INC. (formerly Pacific Beach BioSciences, Inc.) (the "Corporation"), in
the State of Delaware is 2711 Centerville Road, Dover, DE 19901 and its
registered agent at such address is Corporation Service Company.
Section
1.02 PRINCIPAL OFFICE. The principal office for the transaction of
the business of the Corporation shall be at such location, within or without the
State of Delaware, as shall be designated by the Board of Directors of the
Corporation (the “Board”).
Section
1.03 OTHER OFFICES. The Corporation may also have an
office or offices at such other place or places, either within or without the
State of Delaware, as the Board may from time to time determine or as the
business of the Corporation may require.
ARTICLE
II
MEETINGS OF
STOCKHOLDERS
Section
2.01 ANNUAL MEETINGS. Annual meetings of the stockholders
of the Corporation for the purpose of electing directors and for the transaction
of such other proper business as may come before such meetings may be held at
such time, date and place as the Board shall determine by
resolution.
Section
2.02 SPECIAL MEETINGS. Special meetings of the
stockholders of the Corporation for any purpose or purposes may be called at any
time by the Board, or the Chairman of the Board, the Chief Executive Officer,
the President or the Secretary of the Corporation or by a committee of the Board
which, has been duly designated by the Board and whose powers and authority, as
provided in a resolution of the Board or in these Bylaws, include the power to
call such meetings, or by the holder or holders of greater than 50% of the then
outstanding voting securities of the Corporation.
Section
2.03 PLACE OF MEETINGS. All meetings of the stockholders
shall be held at such places, within or without the State of Delaware, as may
from time to time be designated by the person or persons calling the respective
meetings and specified in the respective notices or waivers of notice
thereof.
1
Section
2.04 NOTICE OF MEETINGS. Except as otherwise required by
law, notice of each meeting of the stockholders, whether annual or special,
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each stockholder of record entitled to vote at such meeting by
delivering a typewritten or printed notice thereof to him personally, or by
depositing such notice in the United States mail or overnight delivery service,
in a postage prepaid envelope, or by-hand delivery service, charges prepaid,
directed to him at his address furnished by him to the Secretary of the
Corporation for such purpose or, if he shall not have furnished to the
Secretary his address for such purpose, then at his address last known to the
Secretary, or by transmitting a notice thereof to him at such address by
telegraph, telecopy, cable or wireless. Except as otherwise expressly
required by law, no publication of any notice of a meeting of the stockholders
shall be required. Every notice of a meeting of the stockholders shall state the
place, date and hour of the meeting, and, in the case of a special meeting shall
also state 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.
A written
waiver of notice, signed by a stockholder entitled to notice, whether signed
before, at or after the time set for a given meeting, shall be deemed to satisfy
the notice requirements set forth in the preceding paragraph for such
stockholder with respect to such meeting. Attendance of a stockholder
in person or by proxy at a stockholders' meeting shall constitute the equivalent
of a written waiver of notice by such stockholder for such meeting, except when
such stockholder attends the meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened.
Whenever
notice is required to be given to any stockholder to whom (i) notice of two
consecutive annual meetings, and all notices of meetings or of the taking of
action by written consent without a meeting to such person during the period
between such two consecutive annual meetings, or (ii) all, and at least two,
payments (if sent by first class mail) of dividends or interest on securities
during a twelve month period, have been mailed addressed to such person at his
address as shown on the records of the Corporation and have been returned
undeliverable, the giving of such notice to such person shall not be
required. Any action or meeting which shall have been taken or held
without notice to such person shall have the same force and effect as if such
notice had been duly given. If any such person shall deliver to the
Corporation a written notice setting forth his then current address, the
requirement that notice be given to such person shall be reinstated. No notice
need be given to any person with whom communication is unlawful, nor shall there
be any duty to apply for any permit or license to give notice to any such
person.
2
Section
2.05 QUORUM. Except as provided by law, the holders of
record of a majority in voting interest of the shares of stock of the
Corporation entitled to be voted, present in person or by proxy, shall
constitute a quorum for the transaction of business at any meeting of the
stockholders of the Corporation or any adjournment thereof. The
stockholders present at a duly called or held meeting at which a quorum is
present may continue to do business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum. In the
absence of a quorum at any meeting or any adjournment thereof, a majority in
voting interest of the stockholders present in person or by proxy and entitled
to vote thereat or, in the absence therefrom of all the stockholders, any
officer entitled to preside at or to act as secretary of such meeting may
adjourn such meeting from time to time. At any such adjourned meeting
at which a quorum is present any business may be transacted which might have
been transacted at the meeting as originally called.
Section
2.06 ORGANIZATION. At each meeting of the stockholders,
one of the following shall act as chairman of the meeting and preside thereat,
in the following order of precedence:
(a)
the Chairman of the Board;
(b)
if there is no Chairman of the Board or if the Chairman of the Board shall be
absent from such meeting, the Chief Executive Officer or the
President;
(c)
if the Chairman of the Board, the Chief Executive Officer and the President
shall be absent from such meeting, any other officer or director of the
Corporation designated by the Board or the Executive Committee (if such a
committee has been formed by the Board pursuant to these By-laws) to act as
chairman of such meeting and to preside thereat; or
(d)
a stockholder of record of the Corporation who shall be chosen as the chairman
of such meeting by a majority in voting interest of the stockholders present in
person or by proxy and entitled to vote thereat.
The Secretary or, if the Secretary is
presiding over the meeting in accordance with the provisions of this Section or
if he or she is absent from such meeting, the person (who shall be the Assistant
Secretary, if an Assistant Secretary shall be present thereat) whom the chairman
of such meeting shall appoint, shall act as secretary of such meeting and keep
the minutes thereof.
Section
2.07 ORDER OF BUSINESS. The order of business at each
meeting of the stockholders shall be determined by the chairman of such meeting,
but such order of business may be changed by a majority in voting interest of
those present or by proxy at such meeting and entitled to vote
thereat.
3
Section
2.08 VOTING.
(a)At each meeting of the stockholders,
each stockholder shall be entitled to vote in person or by proxy each share or
fractional share of the stock of the Corporation which has voting rights on
the matter in question and which shall have been held by him and registered in
his name on the books of the Corporation:
(i)on the date fixed pursuant to Section 2.13 as
the record date for the determination of stockholders entitled to notice of
and to vote at such meeting, or
(ii)if no such record date shall have been
so fixed, then (A) at the close of business on the day next preceding the
day on which notice of the meeting shall be given or (B) if notice of the
meeting shall be waived, at the close of business on the day next preceding the
day on which the meeting shall be held.
(b)Shares of its own stock belonging to
the Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors in such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes. Persons holding stock of the Corporation
in a fiduciary capacity shall be entitled to vote such stock. Persons
whose stock is pledged shall be entitled to vote, unless in the transfer by the
pledgor on the books of the Corporation he shall have expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or his proxy, may
represent such stock and vote thereon. Stock having voting power
standing of record in the names of two or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants by the
entirety or otherwise, or with respect to which two or more persons have the
same fiduciary relationship, shall be voted in accordance with the provisions of
the General Corporation Law of the State of Delaware.
(c)Any such voting rights may be exercised
by the stockholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized and delivered to the secretary of the meeting; provided, however, that no
proxy shall be voted or acted upon after three years from its date unless said
proxy shall provide for a longer period. The attendance at any
meeting of a stockholder who may theretofore have given a proxy shall not have
the effect of revoking the same unless he shall in writing so notify the
secretary of the meeting prior to the voting of the proxy. At any
meeting of the stockholders all matters, except as otherwise provided in the
Certificate of Incorporation, in these Bylaws or by law, shall be decided by the
vote of a majority in voting interest of the stockholders present in person or
by proxy and entitled to vote thereat and thereon. The stockholders
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum. The vote at any
meeting of the stockholders on any question need not be by ballot, unless so
directed by the chairman of the meeting. On a vote by ballot,
each ballot shall be signed by the stockholder voting, or by his proxy if there
be such proxy, and it shall state the number of shares voted.
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Section
2.09 LIST OF STOCKHOLDERS. The Secretary of the
Corporation 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, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the entire duration thereof,
and may be inspected by any stockholder who is present.
Section
2.10 STOCK LEDGER. The stock ledger of the Corporation
shall be the only evidence as to which the stockholders are entitled
to examine the stock ledger, the list required by Section 2.09 or the books of
the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section
2.11 INSPECTOR OF ELECTION. The directors, in advance of
any meeting, may, but need not, appoint one or more inspectors of election to
act at the meeting or any adjournment thereof. If an inspector or
inspectors are not appointed, the person presiding at the meeting may, but need
not, appoint one or more inspectors. In case any person who may be
appointed as an inspector fails to appear or act, the vacancy may be filled by
appointment made by the directors in advance of the meeting or at the meeting by
the person presiding thereat. Each inspector so appointed shall first
subscribe an oath faithfully to execute the duties of an inspector at such
meeting with strict impartiality and according to the best of his
ability. Such inspectors shall decide upon the qualification of the
voters and shall report the number of shares represented at the meeting and
entitled to vote on such question, shall conduct and accept the votes, and, when
the voting is completed, shall ascertain and report the number of shares voted
respectively for and against the question. Reports of the inspectors
shall be in writing and subscribed and delivered by them to the Secretary of the
Corporation. Inspectors need not be stockholders of the
Corporation, and any officer of the Corporation may be an inspector on any
question other than a vote for or against a proposal in which he shall have a
material interest. No director or candidate for the office of
director shall act as an inspector of an election of directors.
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Section
2.12 STOCKHOLDER ACTION WITHOUT MEETINGS. Except as may be
otherwise provided by law or by the Certificate of Incorporation, any action
required by the General Corporation Law of the State of Delaware to be taken at
any annual or special meeting of the stockholders, or any action which may be
taken at any annual or special meeting of the stockholders, may be taken without
a meeting, without prior notice and without a vote, if a consent 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. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in
writing.
Section
2.13 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 a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board and which record date: (i) in the
case of determination of stockholders entitled to vote at any meeting of
stockholders or adjournment thereof, shall, unless otherwise required by law,
not be more than sixty nor less than ten days before the date of such meeting;
(ii) in the case of determination of stockholders entitled to express
consent to corporate action in writing without a meeting, shall not be more than
ten days from the date upon which the resolution fixing the record date is
adopted by the Board; and (iii) in the case of any other action, shall not
be more than sixty days prior to such other action. If no record date
is fixed: (i) the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; (ii) the record date for determining
stockholders entitled to express consent to corporate action in writing without
a meeting when no prior action of the Board is required by law, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation in accordance with
applicable law, or, if prior action by the Board is required by law, shall be at
the close of business on the day on which the Board adopts the resolution taking
such prior action; and (iii) the record date for determining stockholders
for any other purpose shall be at the close of business on the day on which the
Board adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the
Board may fix a new record date for the adjourned meeting.
6
ARTICLE
III
BOARD OF
DIRECTORS
Section
3.01 GENERAL POWERS. The property, business and affairs of the
Corporation shall be managed by or under the direction of the Board which may
exercise all of the powers of the Corporation, except such as are, by the
Certificate of Incorporation as amended from time to time, by these Bylaws or by
law conferred upon or reserved to the stockholders.
Section
3.02 NUMBER AND TERM. The Board shall initially consist of
two members. Thereafter, the number of directors that shall
constitute the full Board shall be no fewer than one (1) and no greater than ten
(10), as such number may be changed thereafter from time to time by resolution
of the Board. Directors need not be stockholders of the
Corporation. Each director shall hold office until his or her term
expires, his or her earlier death, a successor is elected and qualified or until
the director resigns or is removed.
Section
3.03 ELECTION OF DIRECTORS. The directors shall be elected
by the stockholders of the Corporation, and at each election the persons
receiving the greatest number of votes, up to the number of directors then to be
elected, shall be the persons then elected. The election of directors
is subject to any provisions contained in the Certificate of Incorporation
relating thereto, including any provisions for a classified board, if
any.
Section
3.04 RESIGNATION AND REMOVAL. Any director of the
Corporation may resign at any time by giving written notice to the Board, the
President or to the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, or, if the time is
not specified, it shall take effect immediately upon its receipt; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Except as
otherwise provided by the Certificate of Incorporation or by law, any director
or the entire board of directors may be removed, with or without cause, by the
holders of a majority of shares then entitled to vote at a meeting for the
election of directors.
7
Section
3.05 VACANCIES. Except as otherwise provided in the
Certificate of Incorporation, any vacancy in the Board, whether because of
death, resignation, disqualification, an increase in the number of directors or
any other cause, may be filled by vote of the majority of the remaining
directors, although less than a quorum, or by a sole remaining
director. Each director so chosen to fill a vacancy shall hold office
until his successor shall have been elected and shall qualify or until he shall
resign or shall have been removed. No reduction of the authorized
number of directors shall have the effect of removing any director prior to the
expiration of his term of office.
Upon the
resignation of one or more directors from the Board, effective at a future date,
a majority of the directors then in office, including those who have so
resigned, shall have the 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
hereinabove in the filling of other vacancies.
Section
3.06 PLACE OF MEETING; TELEPHONE CONFERENCE MEETING. The Board may
hold any of its meetings at such place or places within or without the State of
Delaware as the Board may from time to time by resolution designate or as shall
be designated by the person or persons calling the meeting or in the notice
or waiver of notice of any such meeting. Directors may participate in
any regular or special meeting of the Board by means of conference telephone or
similar communications equipment pursuant to which all persons participating in
the meeting of the Board can hear each other, and such participation shall
constitute presence in person at such meeting.
Section
3.07 FIRST MEETING. The Board shall meet as soon as practicable after
each annual election of directors and notice of such first meeting shall not be
required.
Section
3.08 REGULAR MEETINGS. Regular meetings of the Board may
be held at such times as the Board shall from time to time by resolution
determine. If any day fixed for a meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting shall be held at the
same hour and place on the next succeeding business day which is not a legal
holiday. Except as provided by law, notice of regular meetings need
not be given.
Section
3.09 SPECIAL MEETINGS. Special meetings of the Board may
be called at any time by the Chairman of the Board, the Chief Executive Officer,
the President, the Secretary or by any three directors, to be held at the
principal office of the Corporation, or at such other place or places, within or
without the State of Delaware, as the person or persons calling the meeting may
designate.
8
Notice of
the time and place of special meetings shall be given to each director either
(i) by depositing such notice in the United States mail or overnight delivery
service, in a postage prepaid envelope, or by-hand delivery service, charges
prepaid, addressed to him at his address as it is shown upon the records of the
Corporation, or if it is not so shown on such records or is not readily
ascertainable, at the place in which the meetings of the directors are regularly
held, or by transmitting a notice thereof to him at such address by email,
telegraph, telecopy, cable or wireless, at least 48 hours prior to the time of
the holding of such meeting; or (ii) by orally communicating the time and place
of the special meeting to him at least 48 hours prior to the time of the holding
of such meeting. Either of the notices as above provided shall be
due, legal and personal notice to such director.
Section
3.10 ORGANIZATION. At each meeting of the Board, one of
the following shall act as chairman of the meeting and preside thereat, in the
following order of precedence: (a) the Chairman of the Board; (b) the President;
or (c) any director chosen by a majority of the directors present
thereat. The Secretary or, in case of his or her absence, any person
(who shall be an Assistant Secretary, if an Assistant Secretary shall be present
thereat) whom the chairman shall appoint, shall act as secretary of such meeting
and keep the minutes thereof.
Section
3.11 QUORUM AND ACTION. Except as otherwise provided in
these Bylaws or by law, the presence of a majority of the authorized number of
directors shall be required to constitute a quorum for the transaction of
business at any meeting of the Board, and all matters shall be decided at any
such meeting, a quorum being present, by the affirmative votes of a majority of
the directors present, subject to Section 3.15. In the absence of a
quorum, a majority of directors present at any meeting may adjourn the same from
time to time until a quorum shall be present. Notice of any adjourned
meeting need not be given. The directors shall act only as a Board,
and the individual directors shall have no power as such.
Section
3.12 ACTION BY CONSENT. 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 a written consent thereto is signed by all
members of the Board or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or such committee.
Such action by written consent shall have the same force and effect as the
unanimous vote of such directors.
9
Section
3.13 COMPENSATION. No stated salary need be paid to
directors, as such, for their services but, as fixed and changed from time to
time by resolution of the Board, the directors may receive directors' fees,
compensation and reimbursement for expenses for attendance at directors'
meetings, for serving on committees and for discharging their duties; provided, that
nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section
3.14 COMMITTEES. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one 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. In the absence or disqualification of a member of the
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Any such
committee, to the extent permitted by law and provided by a resolution of the
Board, shall have and may exercise all the powers and authority 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.
Unless
the Board otherwise provides, each committee designated by the Board may make,
alter and repeal rules for conduct of such committee’s business. In
the absence of such rules, each committee shall conduct its business,
substantially in the same manner as the Board conducts its business pursuant to
these Bylaws. Unless otherwise provided by these Bylaws or any such
rules or resolutions, notice of the time and place of each meeting of a
committee shall be given to each member of such committee as provided in Section
3.09 of Article III of these Bylaws with respect to notices of special meetings
of the Board. Any such committee shall keep written minutes of its
meetings and report the same to the Board when
required. Notwithstanding anything in these Bylaws to the contrary,
no committee designated by the Board shall have the power or authority in
reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
General Corporation Law of the State of Delaware to be submitted to stockholders
for approval or (ii) adopting, amending, altering or repealing any Bylaw of the
Corporation.
Section
3.15 OFFICERS OF THE BOARD. A Chairman of the Board or a
Vice Chairman may be appointed from time to time by the Board and shall have
such powers and duties as shall be designated by the Board.
10
Section
3.16 INTERESTED DIRECTORS. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or
participates in the meeting of the Board or committee thereof which authorizes
the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and
the contract or transaction is specifically approved in good faith by vote of
the disinterested stockholders; or (iii) the contract or transaction is fair as
to the Corporation as of the time it is authorized, approved or ratified, by the
Board, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board or of a committee which authorizes the contract or transaction.
ARTICLE
IV
OFFICERS
Section
4.01 OFFICERS. The officers of the Corporation shall be a
Chief Executive Officer, President, a Secretary and a Treasurer. The
Corporation may also have, at the discretion of the Board, a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Vice Presidents, one
or more Assistant Secretaries, one or more Assistant Treasurers and such other
officers as may be appointed in accordance with the provisions of Section
4.03 of these Bylaws. One person may hold two or more offices, except
that the Secretary may not also hold the office of
President. Officers need not be stockholders of the Corporation or
citizens or residents of the United States of America.
Section
4.02 ELECTION AND TERM. The officers of the
Corporation, except such officers as may be appointed in accordance with
the provisions of Section 4.03 or Section 4.05 of these Bylaws, shall be chosen
annually by the Board, and each shall hold his office until he shall resign or
shall be removed or otherwise disqualified to serve, or until his successor
shall be elected and qualified.
11
Section
4.03 SUBORDINATE OFFICERS. The Board may appoint, or may
authorize the Chief Executive Officer or the President to appoint, such other
officers as the business of the Corporation may require, each of whom shall have
such authority and perform such duties as are provided in these Bylaws or as the
Board or the Chief Executive Officer or the President from time to time may
specify, and shall hold office until he shall resign or shall be removed or
otherwise disqualified to serve.
Section
4.04 REMOVAL AND RESIGNATION. Any officer may be removed,
with or without cause, by a majority of the directors at the time in office, at
any regular or special meeting of the Board, or, except in case of an officer
chosen by the Board, by the Chairman of the Board or the Chief Executive Officer
or the President upon whom such power of removal may be conferred by the
Board.
Any
officer may resign at any time by giving written notice to the Board, the
Chairman of the Board, the President or the Secretary of the
Corporation. 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
4.05 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the Bylaws for the regular appointments to such
office.
Section
4.06 CHAIRMAN OF THE BOARD. The Chairman of the Board, if
any, shall preside at all meetings of the stockholders and the Board and
exercise and perform such other powers and duties with respect to the
administration of the business and affairs of the Corporation as may from
time to time be assigned to him by the Board or as prescribed by these
Bylaws. The Chairman of the Board shall preside at all meetings of
the Board.
Section
4.07 CHIEF EXECUTIVE OFFICER/CHIEF OPERATING OFFICER. The Chief
Executive Officer and/or a Chief Operating Officer, if such an officer is
appointed by the Board, shall individually or jointly, as the case may be, have
general and active management of the property, business and affairs of the
Corporation, subject to the supervision and control of the Board. The
Chief Executive Officer or the Chief Operating Officer, as the case may be, also
shall have such powers and perform such other duties as prescribed from time to
time by the Board.
Section
4.08 PRESIDENT. The President of the Corporation shall,
subject to the control of the Board, have general supervision, direction and
control of the business and affairs of the Corporation. He shall have
the general powers and duties of management usually vested in the president of a
corporation, and shall have such other powers and duties with respect to the
administration of the business and affairs of the Corporation as may from time
to time be assigned to him by the Board or as prescribed by these Bylaws.
Section
4.09 VICE PRESIDENT. The Vice President(s), if any, shall
exercise and perform such powers and duties with respect to the administration
of the business and affairs of the Corporation as from time to time may be
assigned to each of them by the Chief Executive Officer or the President, by the
Chairman of the Board, if any, by the Board or as is prescribed by the
Bylaws. In the absence or disability of the Chief Executive Officer
or 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 of the duties of the President and when so acting shall have all of
the powers of and be subject to all the restrictions upon the Chief Executive
Officer and the President.
12
Section
4.10 SECRETARY. The Secretary shall keep, or cause to be
kept, a book of minutes at the principal office for the transaction of the
business of the Corporation, or such other place as the Board may order, of all
meetings of directors and stockholders, with the time and place of holding,
whether regular or special, and if special, how authorized and the notice
thereof given, the names of those present at directors' meetings, the number of
shares present or represented at stockholders' meetings and the proceedings
thereof.
The
Secretary shall keep, or cause to be kept, at the principal office for the
transaction of the business of the Corporation or at the office of the
Corporation's transfer agent, a share register, or a duplicate share register,
showing the names of the stockholders and their addresses, the number and
classes of shares held by each, the number and date of certificates (or their
uncertificated equivalents) issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation (or their
uncertificated equivalents).
The
Secretary shall give, or cause to be given, notice of all the meetings of the
stockholders and of the Board required by these Bylaws or by law to be given,
and he 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 or these Bylaws. If for any reason the Secretary shall fail to
give notice of any special meeting of the Board called by one or more of the
persons identified in Section 3.09 of these Bylaws, or if he shall fail to give
notice of any special meeting of the stockholders called by one or more of the
persons identified in Section 2.02 of these Bylaws, then any such person or
persons identified in such sections may give notice of any such special
meeting.
Section
4.11 TREASURER. The Treasurer 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
shares. Any surplus, including earned surplus, paid-in surplus and
surplus arising from a reduction of capital, shall be classified according
to source and shown in a separate account. The books of account at
all reasonable times shall be open to inspection by any
director.
13
The
Treasurer shall deposit all monies and other valuables in the name and to the
credit of the Corporation with such depositories as may be designated by the
Board. He shall disburse the funds of the Corporation as may be ordered by the
Board, shall render to the President, to the Chief Executive Officer and to the
directors, whenever they request it, an account of all of his transactions as
Treasurer 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 or these Bylaws.
Section
4.12 ASSISTANT SECRETARIES. Except as may be otherwise provided
in these By-Laws, Assistant Secretaries, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by
the Board of Directors, the President, any Vice President, if there be one, or
the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section
4.13 ASSISTANT TREASURERS. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board, the Chief Executive Officer, the President, any
Vice President, if there be one, or the Treasurer, and in the absence of the
Treasurer or in the event of his disability or refusal to act, shall perform the
duties of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the
Board for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
Section
4.14 OTHER OFFICERS. Such other officers as the Board may choose
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board. The Board of Directors may delegate to
any other officer of the Corporation the power to choose such other officers and
to prescribe their respective duties and powers.
Section
4.15 COMPENSATION. The compensation of the officers of the
Corporation, if any, shall be fixed from time to time by the Board.
14
Section
4.16 VOTING SECURITIES OWNED BY THE CORPORATION. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to
securities owned by the Corporation may be executed in the name of and on behalf
of the Corporation by the Chief Executive Officer, the President or any Vice
President and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote
in person or by proxy at any meeting of security holders of any corporation in
which the Corporation may own securities and at any such meeting shall possess
and may exercise any and all rights and power incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board may, by resolution, from time to time confer
like powers upon any other person or persons.
ARTICLE
V
CONTRACTS, CHECKS, DRAFTS,
BANK ACCOUNTS, ETC.
Section
5.01 EXECUTION OF CONTRACTS. The Board, except as
otherwise provided in these Bylaws, may authorize any officer or officers, agent
or agents, to enter into any contract or execute any instrument in the name and
on behalf of the Corporation, and such authority may be general or confined to
specific instances; and unless so authorized by the Board or by these Bylaws, 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 in any amount.
Section
5.02 CHECKS, DRAFTS, ETC. All checks, drafts or other
orders for payment of money, notes or other evidence of indebtedness, issued in
the name of or payable to the Corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall be determined
by resolution of the Board. Each such person shall give such bond, if
any, as the Board may require.
Section
5.03 DEPOSIT. 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 select, or
as may be selected by any officer or officers, assistant or assistants, agent or
agents, attorney or attorneys, of the Corporation to whom such power shall have
been delegated by the Board. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, the President, the
Chief Executive Officer, any Vice President or the Treasurer (or any other
officer or officers, assistant or assistants, agent or agents, or attorney or
attorneys of the Corporation who shall be determined by the Board from time to
time) may endorse, assign and deliver checks, drafts and other orders for the
payment of money which are payable to the order of the Corporation.
15
Section
5.04 GENERAL AND SPECIAL BANK ACCOUNTS. The Board from
time to time may authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the
Board may select or as may be selected by an officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to whom
such power shall have been 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 Bylaws, as it may deem
expedient.
Section
5.05 AUDITS, ACCOUNTS AND REPORTS. The books
of account of the Company shall be audited at least once during each year by a
firm of independent certified accountants.
Section
5.06 ACCESS. All books and records of the Company shall be
kept at the principal place of business of the Company. Each
shareholder may, at its own expense, after giving written notice to the Company,
audit, investigate and familiarize itself with the operations of the Company
using its own employees or such certified public accounting firm, qualified
external auditor or other advisers as it may select. The
shareholders' rights under this Section 5.06, which shall include the right to
make copies of any relevant documents, shall be exercised such that the actions
of the shareholders or their respective agents do not interfere unreasonably
with the operation of the Company in its ordinary course of
business.
Section
5.07 FISCAL YEAR. The fiscal year of the Company shall end
on December 31 of each year.
Section
5.08 ACCOUNTING POLICY. The Company shall maintain
accounting records, accounts and related financial statements in accordance with
United States generally accepted accounting principles applied on a consistent
basis.
Section
5.09 DIVIDENDS. Dividends upon 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, 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 sum or sums as the Board from time to time, in its
absolute discretion, deems 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 any proper purpose, and the Board may modify
or abolish any such reserve.
16
ARTICLE
VI
BOOKS AND
RECORDS
The books
and records of the Corporation may be kept at such place or places within or
without the State of Delaware as the Board may from time to time determine;
provided, however, that to the
extent required by law, the Corporation shall keep at its office in the State of
Delaware, or at the office of its transfer agent or registrar in the State of
Delaware, a record containing the names and addresses of all stockholders of the
Corporation, the number and class of shares held by each of them, and the dates
when they respectively became owners of record of such shares.
ARTICLE
VII
SHARES AND THEIR
TRANSFER
Section
7.01. CERTIFICATES FOR SHARES. The shares of stock of the Corporation
shall be represented by certificates, or shall be uncertificated shares that may
be evidenced by a book-entry system maintained by the registrar of such stock,
or a combination of both. To the extent that shares are represented by
certificates, such certificates whenever authorized by the Board, shall be in
such form as shall be approved by the Board. The certificates
representing shares of stock of each class shall be signed by, or in the name
of, the Corporation by the Chairman of the Board or Vice Chairman of the Board,
or by the President or any Vice President, and by the Secretary or any Assistant
Secretary or the Treasurer or any Assistant Treasurer of the Corporation, which
may be a facsimile thereof. Any or all such signatures may be
facsimiles if countersigned by a transfer agent or
registrar. Although any officer, transfer agent or registrar whose
manual or facsimile signature is affixed to such a certificate ceases to be such
officer, transfer agent or registrar before such certificate has been issued, it
may nevertheless be issued by the Corporation with the same effect as if such
officer, transfer agent or registrar were still such at the date of its
issue. The stock ledger and blank share certificates shall be kept by
the Secretary or by a transfer agent or by a registrar or by any other officer
or agent designated by the Board.
Section
7.02. TRANSFER OF SHARES. Transfers of shares of stock of each class
of the Corporation shall be made only on the books of the Corporation upon
authorization by the registered holder thereof, or by such holder's attorney
thereunto authorized by a power of attorney duly executed and filed with the
Secretary or a transfer agent for such stock, if any, and if such shares are
represented by a certificate, upon surrender of the certificate or certificates
for such shares properly endorsed or accompanied by a duly executed stock
transfer power (or by proper evidence of succession, assignment or authority to
transfer) and the payment of any taxes thereon; provided, however, that the
Corporation shall be entitled to recognize and enforce any lawful restriction on
transfer. The person in whose name shares are registered on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation; provided, however, that whenever any transfer of shares shall be
made for collateral security and not absolutely, and written notice thereof
shall be given to the Secretary or to such transfer agent, such fact shall be
stated in the entry of the transfer. No transfer of shares shall be valid as
against the Corporation, its stockholders and creditors for any purpose, except
to render the transferee liable for the debts of the Corporation to the extent
provided by law, until it shall have been entered in the stock records of the
Corporation by an entry showing from and to whom transferred.
Section
7.03. LOST, DESTROYED AND MUTILATED CERTIFICATES. The holder of any
certificate representing any shares of stock of the Corporation shall
immediately notify the Corporation of any loss, theft, destruction or mutilation
of such certificate; the Corporation may issue to such holder a new certificate
or certificates for shares, upon the surrender of the mutilated certificate or,
in the case of loss, theft or destruction of the certificate, upon satisfactory
proof of such loss, theft or destruction; the Board, or a committee designated
thereby, or the transfer agents and registrars for the stock, may, in their
discretion, require the owner of the lost, stolen or destroyed certificate, or
such person's legal representative, to give the Corporation a bond in such sum
and with such surety or sureties as they may direct to indemnify the Corporation
and said transfer agents and registrars against any claim that may be made on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
Section
7.04. REGULATIONS. The Board may make such additional rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of certificated or uncertificated shares of stock of each class and
series of the Corporation and may make such rules and take such action as it may
deem expedient concerning the issue of certificates in lieu of certificates
claimed to have been lost, destroyed, stolen or mutilated.
17
Section
7.05 REPRESENTATION OF SHARES OF OTHER
CORPORATIONS. The Chief Executive Officer, President or any Vice
President and the Secretary or any Assistant Secretary of this Corporation are
authorized to vote, represent and exercise on behalf of this Corporation all
rights incident to all shares of any other corporation or corporations standing
in the name of this Corporation. The authority herein granted to said
officers to vote or represent on behalf of this Corporation any and all shares
held by this Corporation in any other corporation or corporations may be
exercised either by such officers in person or by any person authorized so
to do by proxy or power of attorney duly executed by said officers.
Section
7.06. TRANSFER AGENTS AND REGISTRARS. The Board may appoint, or
authorize any officer or officers to appoint, one or more transfer agents and
one or more registrars.
ARTICLE
VIII
INDEMNIFICATION
8.01
POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN
THE RIGHT OF THE CORPORATION. Subject to the Certificate of
Incorporation and Section 8.03, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director or officer of
the Corporation, or is or was a director or officer of the Corporation serving
at the request of the Corporation as a director or officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including reasonable attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
18
Section
8.02 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF
THE CORPORATION. Subject to the Certificate of Incorporation and
Section 8.03, the Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against expenses (including reasonable attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery of the State of Delaware or such other court shall deem
proper.
Section
8.03 AUTHORIZATION OF INDEMNIFICATION. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination
that indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section 8.01
or Section 8.02, as the case may be. Such determination shall be made
(i) by the Board by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders who were not parties to such action, suit or
proceeding. To the extent, however, that a director or officer of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including reasonable
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific
case.
Section
8.04 GOOD FAITH DEFINED. For purposes of any determination under this
Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, or, with respect to any criminal action or proceeding, to
have had no reasonable cause to believe his conduct was unlawful, if his action
is based on the records or books of account of the Corporation or another
enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Article
VIII shall mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or
agent. The provisions of this Section 8.04 shall not be deemed
to be exclusive or to limit in any way the circumstances in which a person
may be deemed to have met the applicable standard of conduct set forth in
Sections 8.01 or 8.02, as the case may be.
19
Section
8.05 INDEMNIFICATION BY A COURT. Notwithstanding any contrary
determination in the specific case under Section 8.03, and notwithstanding
the absence of any determination thereunder, any director or officer may apply
to any court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Sections 8.01 and
8.02. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of
conduct set forth in Sections 8.01 or 8.02, as the case may
be. Neither a contrary determination in the specific case under
Section 8.03 nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification pursuant to
this Section 8.05 shall be given to the Corporation promptly upon the
filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be
paid the expense of prosecuting such application.
Section
8.06 EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a
director or officer in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article VIII.
Section
8.07 NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses
provided by or granted pursuant to this Article VIII shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law, agreement, contract,
vote of stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 8.01 and
8.02 shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 8.01 or 8.02 but
whom the Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of Delaware, or
otherwise.
20
Section
8.08 INSURANCE. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether or
not the Corporation would have the power or the obligation to indemnify him
against such liability under the provisions of this Article VIII.
Section
8.09 CERTAIN DEFINITIONS. For purposes of this Article VIII,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, shall stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence
had continued. For purposes of this Article VIII, references to
"fines" shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director or officer with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred
to in this Article VIII.
Section
8.10 SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VIII shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators
of such a person.
21
Section
8.11 LIMITATION ON INDEMNIFICATION. Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section
8.05), the Corporation shall not be obligated to indemnify any
director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized
or consented to by the Board.
Section
8.12 INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may, to the extent
authorized from time to time by the Board, provide rights to indemnification and
to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and
officers of the Corporation.
Section
8.13 CONTRACT RIGHTS. With respect to any person made or threatened
to be made a party to any proceeding by reason of the fact that such person is
or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another enterprise, the
rights to indemnification and to the advancement of expenses conferred in this
Article VIII shall be contract rights.
Section
8.14 MODIFICATION. Any repeal or modification of the
foregoing provisions of this Article VIII shall not adversely affect any right
or protection hereunder of any indemnitee in respect of any act or omission
occurring prior to the time of such repeal or modification. In the
event the General Corporation Law of the State of Delaware is amended after the
date hereof to authorize corporate action further limiting or eliminating the
personal liability of directors or officers, then the personal liability of a
director or officer of the Corporation shall be further limited or eliminated to
the fullest extent permitted by the General Corporation Law of the State of
Delaware, as so amended.
22
ARTICLE
IX
MISCELLANEOUS
Section
9.01 WAIVER OF NOTICES. Whenever notice is required to be
given under any provision of these bylaws, the Certificate of Incorporation or
by law, a written waiver, signed by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when a person attends a meeting for the
express purpose of objecting at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders, directors, or members of
a committee of directors need be specified in any written waiver of notice
unless required by the Certificate of Incorporation.
Section
9.02 LOANS AND GUARANTIES. The Corporation may lend money
to, or guarantee any obligation of, and otherwise assist any officer or other
employee of the Corporation or of its subsidiaries, including any officer who is
a director, whenever, in the judgment of the Board, such loan, guaranty or
assistance may reasonably be expected to benefit the Corporation. The
loan, guaranty, or other assistance may be with or without interest, and may be
unsecured or secured in such manner as the Board shall approve, including,
without limitation, a pledge of shares of stock of the Corporation.
Section
9.03 GENDER. All personal pronouns used in these Bylaws
shall include the other genders, whether used in the masculine, feminine or
neuter gender, and the singular shall include the plural, and vice versa,
whenever and as often as may be appropriate.
Section
9.04 AMENDMENTS. These Bylaws, or any of them, may be
rescinded, altered, amended or repealed, and new Bylaws may be made (i) by the
Board, by vote of a majority of the number of directors then in office as
directors, acting at any meeting of the Board or (ii) by the stockholders, by
the vote of a majority of the outstanding shares of voting stock of the
Corporation, at an annual meeting of stockholders, without previous notice, or
at any special meeting of stockholders; provided; that notice
of such proposed amendment, modification, repeal or adoption is given in the
notice of special meeting; provided, however, that Section
2.02 of these Bylaws can only be amended if that Section as amended would not
conflict with the Corporation's Certificate of Incorporation. Any
Bylaw made or altered by the stockholders may be altered or repealed by the
Board or may be altered or repealed by the stockholders.
Section
9.05 CERTIFICATE OF INCORPORATION. Notwithstanding anything to the
contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of
Incorporation.
Section
9.06 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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