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8-K - FORM 8-K - RESEARCH PHARMACEUTICAL SERVICES, INC. | c04992e8vk.htm |
Exhibit 3.1
AMENDED AND RESTATED BY-LAWS OF
RESEARCH PHARMACEUTICAL SERVICES, INC.
(A Delaware Corporation)
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of the Corporation within the
State of Delaware shall be in the City of Wilmington, County of New Castle.
SECTION 2. Other Offices. The Corporation may also have an office or offices other
than said registered office at such place or places, either within or without the State of
Delaware, as the Board of Directors shall from time to time determine or the business of the
Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 1. Place of Meetings. All meetings of the stockholders for the election of
directors or for any other purpose shall be held at any such place, either within or without the
State of Delaware, as shall be designated from time to time by the Board of Directors and stated in
the notice of meeting or in a duly executed waiver thereof.
SECTION 2. Annual Meeting. The annual meeting of stockholders, shall be held at such
date and time as shall be designated from time to time by the Board of Directors and stated in the
notice of meeting or in a duly executed waiver thereof. At such annual meeting, the stockholders
shall elect, by a plurality vote, a Board of Directors and transact such other business as may
properly be brought before the meeting.
SECTION 3. Special Meetings. Special meetings of stockholders, unless otherwise
prescribed by statute, may be called at any time by the Board of Directors or the Chairman of the
Board, if one shall have been elected, or the President and shall be called by the Secretary upon
the request in writing of a stockholder or stockholders holding of record at least 50 percent of
the issued and outstanding shares of stock of the Corporation entitled to vote.
SECTION 4. Notice of Meeting. Except as otherwise expressly required by statute,
written notice of each annual and special meeting of stockholders stating the date, place and hour
of the meeting, and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be given to each stockholder of record entitled to vote thereat not less
than ten nor more than sixty days before the date of the meeting. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the notice. Notice
shall be given personally or by mail and, if by mail, shall be sent in a postage prepaid envelope,
addressed to the stockholder at his address as it appears on the records of the Corporation.
Notice by mail shall be deemed given at the time when the same shall be deposited in the United
States mail, postage prepaid. Notice of any meeting shall not be required to be given to any
person who attends such meeting, except when such person attends the meeting in person or by proxy
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, or who, either before or after the
meeting, shall submit a signed written waiver of notice, in person or by proxy. Neither the
business to be transacted at, nor the purpose of an annual or special meeting of stockholders need
be specified in any written waiver of notice.
SECTION 5. List of Stockholders. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before each meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
showing the address of and the number of shares registered in the name of each stockholder. Such
list shall be open to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the meeting, either at a
place within the city, town or village where the meeting is to be held, which place shall be
specified in the notice of meeting, or, if not specified, at the place where the meeting is to be
held. The list shall 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 6. Quorum, Adjournments. The holders of a majority of the voting power of the
issued and outstanding stock of the Corporation entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum for the transaction of business at all meetings of
stockholders, except as otherwise provided by statute or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented by proxy at any meeting of stockholders,
the stockholders entitled to vote thereat, present in person or represented by proxy, shall have
the power to adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented by proxy. At such adjourned meeting at
which a quorum shall be present or represented by proxy, any business may be transacted which might
have been transacted at the meeting as originally called. If the adjournment is for more than
thirty days, or, if after adjournment a new record date is set, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
SECTION 7. Organization. At each meeting of stockholders, either the Chairman of the
Board or the President may act as chairman of the meeting. The Secretary or any person whom the
chairman of the meeting shall appoint as secretary of the meeting shall act as secretary of the
meeting and keep the minutes thereof. The chairman of the meeting shall have the right to adopt
and enforce rules for the conduct of the meeting, including, without limitation, determinations
with regard to the validity of proxies submitted in respect of the matters to be voted upon at the
meeting, the appointment of a secretary of the meeting to keep the minutes thereof and the
adjournment of the meeting to a later date as determined by the chairman in his or her sole
discretion, in each case only to the extent such rules of conduct adopted by the chairman are not
prohibited under the Delaware General Corporation Law.
SECTION 8. Order of Business. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
SECTION 9. (a) Voting. Except as otherwise provided by statute or the Certificate of
Incorporation, each stockholder of the Corporation shall be entitled at each meeting of
stockholders to one vote for each share of capital stock of the Corporation standing in his name on
the record of stockholders of the Corporation:
(i) on the date fixed pursuant to the provisions of Section 7 of Article V of these By-Laws as
the record date for the determination of the stockholders who shall be entitled to notice of and to
vote at such meeting; or
(ii) if no such record date shall have been so fixed, then at the close of business on the day
next preceding the day on which notice thereof shall be given, or, if notice is waived, at the
close of business on the date next preceding the day on which the meeting is held.
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, but no
proxy shall be voted after three years from its date, unless the proxy provides for a longer
period. Any such proxy shall be delivered to the secretary of the meeting at or prior to the time
designated in the order of business for so delivering such proxies. When a quorum is present at
any meeting, the vote of the holders of a majority of the voting power of the issued and
outstanding stock of the Corporation entitled to vote thereon, present in person or represented by
proxy, shall decide any question brought before such meeting, unless the question is one upon which
by express provision of statute or of the Certificate of Incorporation or of these By-Laws, a
different vote is required, in which case such express provision shall govern and control the
decision of such question. Unless required by statute, or determined by the chairman of the
meeting to be advisable, the vote on any question need not be by ballot. On a vote by ballot, each
ballot shall be signed by the stockholder voting, or by his proxy, if there by such proxy, and
shall state the number of shares voted.
SECTION 10. Inspectors. The Board of Directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any adjournment thereof. If
any of the inspectors so appointed shall fail to appear or act, the chairman of the meeting shall,
or if inspectors shall not have been appointed, the chairman of the meeting may, appoint one or
more 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 of
capital stock of the Corporation 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 results, and do such acts as are proper to conduct the election or vote with fairness to all
stockholders. On request of the chairman of the meeting, 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 an
inspector of an election of directors. Inspectors need not be stockholders.
SECTION 11. Action by Consent. Whenever the vote of stockholders at a meeting thereof
is required or permitted to be taken for or in connection with any corporate action, by any
provision of statute or of the Certificate of Incorporation or of these By-Laws, the meeting and
vote of stockholders may be dispensed with, and the action taken without such meeting and 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 of stock of the Corporation entitled
to vote thereon were present and voted.
ARTICLE III
Board of Directors
SECTION 1. General Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. The Board of Directors 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 directed or required to be exercised or done by the
stockholders.
SECTION 2. Number, Qualifications, Election and Term of Office. The Board of
Directors shall consist of not less than one (1) nor more than eleven (11) directors, the exact
number of which shall be fixed from time to time by the Board of Directors. Thereafter, the number
of directors may be fixed, from time to time, by the affirmative vote of a majority of the entire
Board of Directors or by action of the stockholders of the Corporation. Any decrease in the number
of directors shall be effective at the time of the next succeeding annual meeting of stockholders
unless there shall be vacancies in the Board of Directors, in which case such decrease may become
effective at any time prior to the next succeeding annual meeting to the extent of the number of
such vacancies. Directors need not be stockholders. Except as otherwise provided by statute or
these By-Laws, the directors (other than members of the initial Board of Directors) shall be
elected at the annual meeting of stockholders. Each director shall hold office until his successor
shall have been elected and qualified, or until his death, or until he shall have resigned, or have
been removed, as hereinafter provided in these By-Laws.
SECTION 3. Place of Meetings. Meetings of the Board of Directors shall be held at
such place or places, within or without the State of Delaware, as the Board of Directors may from
time to time determine or as shall be specified in the notice of any such meeting.
SECTION 4. Annual Meeting. The Board of Directors shall meet for the purpose of
organization, the election of officers and the transaction of other business, as soon as
practicable after each annual meeting of 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. In the event such
annual meeting is not so held, the annual meeting of the Board of Directors may be held at such
other time or place (within or without the State of Delaware) as shall be specified in a notice
thereof given as hereinafter provided in Section 7 of this Article III.
SECTION 5. Regular Meetings. Regular meetings of the Board of Directors shall be held
at such time and place as the Board of Directors may fix. 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 of Directors need not be given
except as otherwise required by statute or these By-Laws.
SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called
by the Chairman of the Board, if one shall have been elected, or by two or more directors of the
Corporation or by the President.
SECTION 7. Notice of Meetings. Notice of each special meeting of the Board of
Directors (and of each regular meeting for which notice shall be required) shall be given by the
Secretary as hereinafter provided in this Section 7, in which notice shall be stated the time and
place of the meeting. Except as otherwise required by these By-Laws, such notice need not state
the purposes of such meeting. Notice of each such meeting shall be mailed, postage prepaid, to
each director, addressed to him at his residence or usual place of business, by first class mail,
at least five days before the day on which such meeting is to be held, or shall be sent addressed
to him at such place by facsimile or other similar means, or be delivered to him personally or be
given to him by telephonic conversation or other similar means, at least twenty-four hours before
the time at which such meeting is to be held. 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, except when he shall attend 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.
SECTION 8. Quorum and Manner of Acting. A majority of the entire Board of Directors
shall constitute a quorum for the transaction of business at any meeting of the Board of Directors,
and, except as otherwise expressly required by statute or the Certificate of Incorporation or these
By-Laws, 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 of Directors. In the absence of a quorum at any meeting of the Board
of Directors, a majority of the directors present thereat may adjourn such meeting to another time
and place. Notice of the time and place of any such adjourned meeting shall be given to all of the
directors unless such time and place were announced at the meeting at which the adjournment was
taken, in which case such notice shall only be given to the directors who were not present thereat.
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. 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 of Directors, the Chairman of
the Board, if one shall have been elected, or, in the absence of the Chairman of the Board or if
one shall not have been elected, the President (or, in his absence, 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 absence, any person appointed by the chairman shall act as secretary of the
meeting and keep the minutes thereof.
SECTION 10. Resignations. Any director of the Corporation may resign at any time by
giving written notice of his resignation to the Corporation. 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. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 11. Vacancies. Any vacancy in the Board of Directors, whether arising from
death, resignation, removal (with or without cause), an increase in the number of directors or any
other cause, may be filled by the vote of a majority of the directors then in office, though less
than a quorum, or by the sole remaining director or by the stockholders at the next annual meeting
thereof or at a special meeting thereof. Each director so elected shall hold office until his
successor shall have been elected and qualified.
SECTION 12. Removal of Directors. A director of the Corporation may only be removed
from office for cause by action of the holders of a majority of the voting power of the issued and
outstanding capital stock of the Corporation entitled to vote at an election of directors.
SECTION 13. Compensation. The Board of Directors shall have authority to fix the
compensation, including fees and reimbursement of expenses, of directors for services to the.
Corporation in any capacity.
SECTION 14. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one or more committees, including an executive
committee, each committee to consist of one or more of the directors of the Corporation. The Board
of Directors 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. Except to the extent
restricted by statute or the Certificate of Incorporation, each such committee, to the extent
provided in the resolution creating it, shall have and may exercise all the powers and authority of
the Board of Directors and may authorize the seal of the Corporation to be affixed to all papers
which require it. Each such committee shall serve at the pleasure of the Board of Directors and
have such name as may be determined from time to time by resolution adopted by the Board of
Directors. Each committee shall keep regular minutes of its meetings and report the same to the
Board of Directors.
SECTION 15. Action by Consent. Unless restricted by the Certificate of Incorporation,
any action required or permitted to be taken by the Board of Directors or any, committee thereof
may be taken without a meeting if all members of the Board of Directors or such 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 of Directors or such committee, as the case may be.
SECTION 16. Telephonic Meeting. Unless restricted by the Certificate of
Incorporation, any one or more members of the Board of Directors or any committee thereof may
participate in a meeting of the Board of Directors or such committee by means of a conference
telephone or similar communications equipment by means of which all persons participating in the
meeting can hear each other. Participation by such means shall constitute presence in person at a
meeting.
ARTICLE IV
Officers
SECTION 1. Number and Qualifications. The officers of the Corporation shall be
elected by the Board of Directors and shall include the President and the Secretary. If the Board
of Directors wishes, it either may also elect as an officer of the Corporation a Chairman of the
Board and may elect other officers (including one or more Vice Presidents, a Treasurer, one or more
Assistant Treasurers and one or more Assistant Secretaries) as may be necessary or desirable for
the business of the Corporation. Any two or more offices may be held by the same person, and no
officer except the Chairman of the Board need be a director. Each officer shall hold office until
his successor shall have been duly elected and shall have qualified, or until his death, or until
he shall have resigned or have been removed, as hereinafter provided in these By-Laws.
SECTION 2. Resignations. Any officer of the Corporation may resign at any time by
giving written notice of his resignation to the Corporation. 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 receipt. Unless otherwise specified therein, the acceptance of
any such resignation shall not be necessary to make it effective.
SECTION 3. Removal. Any officer of the Corporation may be removed, either with or
without cause, at any time, by the Board of Directors at any meeting thereof.
SECTION 4. Chairman of the Board. The Chairman of the Board, if one shall have been
elected, shall be a member of the Board, an officer of the Corporation and, if present, shall
preside at each meeting of the Board of Directors or the stockholders. He shall advise and counsel
with the President and the Chief Executive Officer, and in the absence of either, with other
executives of the Corporation, and shall perform such other duties as may from time to time be
assigned to him by the Board of Directors.
SECTION 5. The Chief Executive Officer. The Chief Executive Officer shall be the
chief executive officer of the Corporation. He shall, in the absence of the Chairman of the Board
or if a Chairman of the Board shall not have been elected, preside at each meeting of the Board of
Directors or the stockholders. He shall perform all duties incident to the office of Chief
Executive Officer and such other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 6. The President. The President shall be the chief operating officer of the
Corporation. He shall perform all duties incident to the office of President and chief operating
officer and such other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 7. Vice-President. Each Vice-President, if any, shall perform all such duties
as from time to time may be assigned to him by the Board of Directors or the President. At the
request of the President or in his absence or in the event of his inability or refusal to act, the
Vice-President, or if there shall be more than one, the Vice-Presidents in the order
determined by the Board of Directors (or if there be no such determination, then the
Vice-Presidents in the order of their election), shall perform the duties of the President, and,
when so acting, shall have the powers of and be subject to the restrictions placed upon the
President in respect of the performance of such duties.
SECTION 8. Treasurer. The Treasurer, if any, shall
(a) have charge and custody of, and be responsible for, all the funds and
securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of the Corporation in
such depositories as may be designated by the Board of Directors or pursuant to its
direction;
(d) receive, and give receipts for, moneys due and payable to the Corporation
from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the investments of its
funds, taking proper vouchers therefor;
(f) render to the Board of Directors, whenever the Board of Directors may
require, an account of the financial condition of the Corporation; and
(g) in general, perform all duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him by the Board of Directors.
SECTION 9. 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 of Directors, the committees of the Board of
Directors 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 certificates for shares of the Corporation (unless the seal
of the Corporation on such certificates shall 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;
(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 duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him by the Board of Directors.
SECTION 10. The Assistant Treasurer. The Assistant Treasurer, if any, or if there
shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors
(or if there be no such determination, then in the order of their election), shall, in the absence
of the Treasurer or in the event of his inability or refusal to act, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as from time to time may
be assigned by the Board of Directors.
SECTION 11. The Assistant Secretary. The Assistant Secretary, if any, or if there be
more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election), shall, in the absence of the
Secretary or in the event of his inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as from time to time may be assigned by
the Board of Directors.
SECTION 12. Officers Bonds or Other Security. If required by the Board of Directors,
any officer of the Corporation shall give a bond or other security for the faithful performance of
his duties, in such amount and with such surety as the Board of Directors may require.
SECTION 13. 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 of Directors. 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.
ARTICLE V
Stock Certificates and Their Transfer
SECTION 1. Stock Certificates. The shares of stock of the Corporation shall be
represented by certificates; provided that the Board of Directors may provide by resolution or
resolutions that some or all of any class or series shall be uncertificated shares that may be
evidenced by a book-entry system maintained by the registrar of such stock. If shares are
represented by certificates, such certificates shall be in the form approved by the Board of
Directors. If shares are represented by certificates such certificates shall be signed by, or in
the name of, the Corporation, by the Chairman of the Board or the President or a Vice-President and
by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by a stockholder in the Corporation.
SECTION 2. Facsimile Signatures. Any or all of the signatures on a certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date of issue.
SECTION 3. Lost Certificates. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen, or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate
or certificates, or his legal representative, to give the Corporation a bond in such sum as it may
direct sufficient to indemnify it against any claim that may be made against the Corporation on
account of the alleged loss, theft or destruction of any such certificate or the issuance of such
new certificate.
SECTION 4. Transfers of Stock. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these By-Laws. Transfers of stock shall be made on the books of the
Corporation only by the person named as the holder thereof on the stock records of the Corporation,
by such persons attorney lawfully constituted in writing, and in the case of shares represented by
a certificate upon the surrender of the certificate thereof, which shall be cancelled before a new
certificate or uncertificated shares shall be issued. No transfer of stock shall be valid as
against the Corporation for any purpose until it shall have been entered in the stock records of
the Corporation by an entry showing from and to whom transferred. To the extent designated by the
president or any vice president or the treasurer of the Corporation, the Corporation may recognize
the transfer of fractional uncertificated shares, but shall not otherwise be required to recognize
the transfer of fractional shares.
SECTION 5. Transfer Agents and Registrars. The Board of Directors may appoint, or
authorize any officer or officers to appoint, one or more transfer agents and one or more
registrars.
SECTION 6. Regulations. The Board of Directors 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 shares of stock of the Corporation
SECTION 7. Fixing the 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 of Directors may fix, in advance, a record date, which shall not
be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days
prior to any 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 of Directors may fix a new record date for the adjourned meeting
SECTION 8. Registered Stockholders. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its records as the owner of shares of stock to
receive dividends and to vote as such owner, shall be entitled to hold liable for calls and
assessments a person registered on its records as the owner of shares of stock, and shall not be
bound to recognize any equitable or other claim to or interest in such share or shares of stock on
the part of any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
ARTICLE VI
Indemnification of Directors and Officers
SECTION 1. General. 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, officer, employee
or agent of the Corporation, or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including 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.
SECTION 2. Derivative Actions. 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, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses (including 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, provided that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or
the court in which such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
SECTION 3. Indemnification in Certain Cases. To the extent that a present or former
director, officer, employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections 1 and 2 of this
Article VI, or in defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys fees) actually and reasonably incurred by him in connection
therewith.
SECTION 4. Procedure. Any indemnification under Sections 1 and 2 of this Article VI
(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 present or former director, officer, employee
or agent is proper in the circumstances because he has met the applicable standard of conduct set
forth in such Sections 1 and 2. Such determination shall be made (a) by the Board of Directors by
a majority vote of a quorum consisting of directors who were not parties to such action, suit or
proceeding, even though less than a quorum, or (b) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, or (c) if there are no such
directors, or if such directors so direct, by independent legal counsel in a written opinion, or
(d) by the stockholders.
SECTION 5. Advances for Expenses. Expenses incurred in defending a civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of the director, officer, employee or agent to repay such amount if it shall be
ultimately determined that he is not entitled to be indemnified by the Corporation as authorized in
this Article VI.
SECTION 6. Rights Not Exclusive. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this Article VI shall not be deemed
exclusive of any other rights to which those seeking indemnification or advancement of expenses may
be entitled under any law, by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in another capacity while
holding such office,
SECTION 7. Insurance. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him 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 to indemnify him against
such liability under the provisions of this Article VI.
SECTION 8. Definition of Corporation. For the purposes of this Article VI, references
to the Corporation include all constituent corporations absorbed in a consolidation or merger as
well as the resulting or surviving corporation so that any person who is or was a director,
officer, employee or agent of such a constituent corporation or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same position under the
provisions of this Article VI with respect to the resulting or surviving corporation as he would if
he had served the resulting or surviving corporation in the same capacity.
SECTION 9. Survival of Rights. The indemnification and advancement of expenses
provided by, or granted pursuant to this Article VI shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
ARTICLE VII
General Provisions
SECTION 1. Dividends. Subject to the provisions of statute and the Certificate of
Incorporation, dividends upon the shares of capital stock of the Corporation may be declared by the
Board of Directors at any regular or special meeting. Dividends may be paid in cash, in property
or in shares of stock of the Corporation, unless otherwise provided by statute or the Certificate
of Incorporation.
SECTION 2. Reserves. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
may, from time to time, in its absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors may think conducive to the
interests of the Corporation. The Board of Directors may modify or abolish any such reserves in
the manner in which it was created.
SECTION 3. Seal. The seal of the Corporation shall be in such form as shall be
approved by the Board of Directors.
SECTION 4. Fiscal Year. The fiscal year of the Corporation shall be fixed, and once
fixed, may thereafter be changed, by resolution of the Board of Directors.
SECTION 5. Checks, Notes, Drafts, Etc. All checks, notes, drafts or other orders for
the payment of money of the Corporation shall be signed, endorsed or accepted in the name of the
Corporation by such officer, officers, person or persons as from time to time may be designated by
the Board of Directors or by an officer or officers authorized by the Board of Directors to make
such designation.
SECTION 6. Execution of Contracts, Deeds, Etc. The Board of Directors may authorize
any officer or officers, agent or agents, in the name and on behalf of the Corporation to enter
into or execute and deliver any and all deeds, bonds, mortgages, contracts and other obligations or
instruments, and such authority may be general or confined to specific instances.
SECTION 7. Voting of Stock in Other Corporations. Unless otherwise provided by
resolution of the Board of Directors, the Chairman of the Board or the President, from time to
time, may (or may appoint one or more attorneys or agents to) cast the votes which the Corporation
may be entitled to cast as a shareholder or otherwise in any other corporation, any of whose shares
or securities may be held by the Corporation, at meetings of the holders of the shares or other
securities of such other corporation. In the event one or more attorneys or agents are appointed,
the Chairman of the Board or the President may instruct the person or persons so appointed as to
the manner of casting such votes or giving such consent. The Chairman of the Board or the
President may, or may instruct the attorneys or agents appointed to, execute or cause to be
executed in the name and on behalf of the Corporation and under its seal or otherwise, such written
proxies, consents, waivers or other instruments as may be necessary or proper in the circumstances.
ARTICLE VIII
Amendments
These By-Laws may be amended or repealed or new by-laws adopted (a) by action of the
stockholders entitled to vote thereon in accordance with Article II, Section 9 of these By-Laws or
(b) by action of the Board of Directors at a regular or special meeting thereof. Any by-law made
by the Board of Directors may be amended or repealed by action of the stockholders at any annual or
special meeting of stockholders.