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8-K - FORM 8-K - OSTEOTECH INC | c08592e8vk.htm |
EX-3.1 - EXHIBIT 3.1 - OSTEOTECH INC | c08592exv3w1.htm |
Exhibit 3.2
BY-LAWS
OF
OSTEOTECH, INC.
ARTICLE I
Offices
SECTION 1. REGISTERED OFFICE. The registered office of the corporation shall be established
and maintained at the office of the Corporation Trust Company, 1209 Orange Street, Wilmington,
Delaware 19801, and said corporation shall be the registered agent of this corporation in charge
thereof.
SECTION 2. OTHER OFFICES. The corporation may have other offices, either within or without
the State of Delaware, at such place or places as the Board of Directors may from time to time
appoint or the business of the corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the election of directors
and for such other business as may be stated in the notice of the meeting, shall be held at such
place, either within or without the State of Delaware, and at such time and date as the Board of
Directors, by resolution, shall determine and as set forth in the notice of the meeting.
If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held
on the next business day. At each annual meeting, the stockholders entitled to vote shall elect a
Board of Directors and they may transact such other corporate business as shall be stated in the
notice of the meeting.
SECTION 2. OTHER MEETINGS. Meetings of stockholders for any purpose other than the election
of directors may be held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of meeting.
SECTION 3. VOTING. Each stockholder entitled to vote in accordance with the terms of the
Certificate of Incorporation and in accordance with the provisions of these By-Laws shall be
entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such
stockholder, but no proxy shall be voted after three years from its date unless such proxy provides
for a longer period. Upon the demand of any stockholder, the vote for directors and the vote upon
any question before the meeting, shall be by ballot. All elections for
directors shall be decided by plurality vote; all questions shall be decided by majority vote
except as otherwise provided by the Certificate of Incorporation or the laws of the State of
Delaware.
A complete list of the stockholders entitled to vote at the ensuing election, arranged in
alphabetical order, with the address of each, and the number of shares held by each, shall be open
to the examination of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the meeting and place of the meeting during the whole time thereof,
and may be inspected by any stockholder who is present.
SECTION 4. QUORUM. Except as otherwise required by Law, by the Certificate of Incorporation
or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the
stock of the corporation entitled to vote shall constitute a quorum at all meetings of the
stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the
stockholders entitled to vote thereat, present in person or by proxy, shall have the power to
adjourn the meeting from time to time, without notice other than announcement at the meeting, until
the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at
which the requisite amount of stock entitled to vote shall be represented, any business may be
transacted which might have been transacted at the meeting as originally noticed; but only those
stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any
adjournment or adjournments thereof.
SECTION 5. SPECIAL MEETINGS. Special meetings of the stockholders for any purpose or
purposes may be called by the President or Secretary, or by resolution of the directors.
SECTION 6. NOTICE OF MEETINGS. Written notice, stating the place, date and time of the
meeting, and the general nature of the business to be considered, shall be given to each
stockholder entitled to vote thereat at his address as it appears on the records of the
corporation, not less than ten nor more than sixty days before the date of the meeting. No
business other than that stated in the notice shall be transacted at any meeting without the
unanimous consent of all the stockholders entitled to vote thereat.
SECTION 7. ACTION WITHOUT MEETING. Unless otherwise provided by the Certificate of
Incorporation, any action required to be taken at any annual or special meeting of stockholders, or
any action which may be taken at any annual or special meeting, 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.
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ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM. The Board of Directors shall consist of one or more members. At
each annual meeting, the stockholders shall determine the number of directors; provided, that
between annual meetings the authorized number of directors may be increased or decreased by the
stockholders. A director shall hold office until a successor is elected and qualified, or until
the earlier death, resignation, disqualification, or removal of the director.
SECTION 2. RESIGNATIONS. Any director, member of a committee or other officer may resign at
any time. Such resignation shall be made in writing, and shall take effect at the time specified
therein, and if no time be specified, at the time of its receipt by the President or Secretary.
The acceptance of a resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. If the office of any director, member of a committee or other officer
becomes vacant, the remaining directors in office, though less than a quorum, by a majority vote,
may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term
and until his successor shall be duly chosen.
SECTION 4. REMOVAL. Except as hereinafter provided, any director or directors may be removed
either for or without cause at any time by the affirmative vote of the holders of a majority of all
the shares of stock outstanding and entitled to vote, at a special meeting of the stockholders
called for the purpose and the vacancies thus created may be filled, at the meeting held for the
purpose of removal, by the affirmative vote of a majority in interest of the stockholders entitled
to vote.
Unless the Certificate of Incorporation otherwise provides, stockholders may effect removal of
a director who is a member of a classified Board of Directors only for cause. If the Certificate
of Incorporation provides for cumulative voting and if less than the entire board is to be removed,
no director may be removed without cause if the votes cast against his removal would be sufficient
to elect him if then cumulatively voted at an election of the entire board of directors, or if
there be classes of directors, at an election of the class of directors of which he is a part.
If the holders of any class of series are entitled to elect one or more directors by the
provisions of the Certificate of Incorporation, these provisions shall apply, in respect to the
removal without cause of a director or directors so elected, to the vote of the holders of the
outstanding shares of that class or series and not to the vote of the outstanding shares as a
whole.
SECTION 5. INCREASE OF NUMBER. The number of directors may be increased by amendment of
these By-Laws by the affirmative vote of a majority of the directors, though less than a quorum,
or, by the affirmative vote of a majority
interest of the stockholders, at the annual meeting or at a special meeting called for that
purpose, and by like vote the additional directors may be chosen at such meeting to hold office
until the next annual election and until their successors are elected and qualify.
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SECTION 6. POWERS. The Board of Directors shall exercise all of the powers of the
corporation except such as are by law, or by the Certificate of Incorporation of the corporation or
by these By-Laws conferred upon or reserved to the stockholders.
SECTION 7. COMMITTEES. The Board of Directors may, by resolution or resolutions passed by a
majority of the whole board, designate one or more committees, each committee to consist of two or
more 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 any member of such committee or committees, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board of Directors, or in
these By-Laws, shall have and may exercise all the powers and authority of the Board of Directors
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; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation, adopting an agreement
of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporations property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the By-Laws of the
corporation; and, unless the resolution, these By-Laws, or the Certificate of Incorporation
expressly so provide, no such committee shall have the power or authority to declare a dividend or
to authorize the issuance of stock.
SECTION 8. MEETINGS. Regular meetings of the directors may be held without notice at such
places and times as shall be determined from time to time by resolution of the directors.
Special meetings of the board may be called by the President or by the Secretary on the
written request of any two directors on at least two days notice to each director and shall be
held at such place or places as may be determined by the directors, or shall be stated in the call
of the meeting.
Unless otherwise restricted by the Certificate of Incorporation or by these By-Laws, members
of the Board of Directors, or any committee designated by the Board of Directors, may participate
in a meeting of the Board of Directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in the meeting can
hear each other, and such participation in a meeting shall constitute presence in person at the
meeting.
SECTION 9. QUORUM. A majority of the directors shall constitute a quorum for the transaction
of business. If at any meeting of the board there shall be less than a quorum present, a majority
of those present may adjourn the meeting from time to time until a quorum is obtained, and no
further notice thereof need be given other than by announcement at the meeting which shall be so
adjourned.
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SECTION 10. COMPENSATION. Directors shall not receive any stated salary for their services
as directors or as members of committees, but by resolution of the board a fixed fee and expenses
of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be
construed to preclude any director from serving the corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation therefor.
SECTION 11. ACTION WITHOUT MEETING. Any action required or permitted to be taken at any
meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if
prior to such action 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 committee.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall be a President, a Secretary, and
a Chief Financial Officer, all of whom shall be elected by the Board of Directors and who shall
hold office until their successors are elected and qualified. In addition, the Board of Directors
may elect a Chairman, one or more Vice-Presidents and such Assistant Secretaries and Assistant
Treasurers as they may deem proper. None of the officers of the corporation need be directors.
The officers shall be elected at the first meeting of the Board of Directors after each annual
meeting. Two or more offices may be held by the same person.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors may appoint such other officers
and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by the Board of
Directors.
SECTION 3. CHAIRMAN. The Chairman of the Board of Directors, if one be elected, shall
preside at all meetings of the Board of Directors and he shall have and perform such other duties
as from time to time may be assigned to him by the Board of Directors.
SECTION 4. PRESIDENT. The President shall be the chief executive officer of the corporation
and shall have the general powers and duties of supervision and management usually vested in the
office of President of a corporation. He shall preside at all meetings of the stockholders if
present thereat, and in the absence or nonelection of the Chairman of the Board of Directors, at
all meetings of the Board of Directors, and shall have general supervision, direction and control
of the business of the corporation. Except as the Board of Directors shall authorize the execution
thereof in some other manner, he shall execute bonds, mortgages and other contracts in behalf of
the corporation, and shall cause the seal to be affixed to any instrument requiring it and when so
affixed the seal shall be attested by the signature of the Secretary or the Treasurer or an
Assistant Secretary or an Assistant Treasurer.
SECTION 5. VICE-PRESIDENT. Each Vice-President shall have such powers and shall perform such
duties as shall be assigned to him by the directors.
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SECTION 6. SECRETARY. The Secretary shall give, or cause to be given, notice of all meetings
of stockholders and directors, and all other notices required by law or by these By-Laws, and in
case of his absence or refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the President, or by the directors, or stockholders, upon whose requisition
the meeting is called as provided in these By-Laws. He shall record all the proceedings of the
meetings of the corporation and of the directors in a book to be kept for that purpose, and shall
perform such other duties as may be assigned to him by the directors or the President. He shall
have the custody of the seal of the corporation and shall affix the same to all instruments
requiring it, when authorized by the directors or the President, and attest the same.
SECTION 7. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall have the custody of
the corporate funds and securities and shall keep full and accurate account of receipts and
disbursements in books belonging to the corporation. He shall deposit all moneys and other
valuables in the name and to the credit of the corporation in such depositaries as may be
designated by the Board of Directors.
The Chief Financial Officer shall disburse the funds of the corporation as may be ordered by
the Board of Directors, or the President, taking proper vouchers for such disbursements. He shall
render to the President and Board of Directors at the regular meetings of the Board of Directors,
or whenever they may request it, an account of all his transactions as Treasurer and of the
financial condition of the corporation. If required by the Board of Directors, he shall give the
corporation a bond for the faithful discharge of his duties in such amount and with such surety as
the board shall prescribe.
SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant Treasurers and
Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such
duties as shall be assigned to them, respectively, by the directors.
ARTICLE V
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK. Certificate of stock, signed by the Chairman or Vice
Chairman of the Board of Directors, if they be elected, President or Vice-President, and the
Treasurer or an Assistant Treasurer, or Secretary or an Assistant Secretary, shall be issued to
each stockholder certifying the number of shares owned by him in the corporation. Any of or all
the signatures may be facsimiles.
SECTION 2. LOST CERTIFICATES. A new certificate of stock may be issued in the place of any
certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the
directors may, in their discretion, require the owner of the lost or destroyed certificate, or his
legal representatives, to give the corporation a bond, in such sum as they may direct, not
exceeding double the value of the stock, to indemnify the corporation
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against any claim that may be made against it on account of the alleged loss of any such
certificate, or the issuance of any such new certificate.
SECTION 3. TRANSFER OF SHARES. The shares of stock of the corporation shall be transferable
only upon its books by the holders thereof in person or by their duly authorized attorneys or legal
representatives, and upon such transfer the old certificates shall be surrendered to the
corporation by the delivery thereof to the person in charge of the stock and transfer books and
ledgers, or to such other person as the directors may designate, by whom they shall be cancelled,
and new certificates shall thereupon be issued. A record shall be made of each transfer and
whenever a transfer shall be made for collateral security, and not absolutely, it shall be so
expressed in the entry of the transfer.
SECTION 4. STOCKHOLDERS 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 5. DIVIDENDS. Subject to the provisions of the Certificate of Incorporation, the
Board of Directors may, out of funds legally available therefor at any regular or special meeting,
declare dividends upon the capital stock of the corporation as and when they deem expedient.
Before declaring any dividend there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the directors from time to time in their discretion deem proper
for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for
such other purposes as the directors shall deem conducive to the interests of the company.
SECTION 6. NO CORPORATE SEAL. There shall be no corporate seal.
SECTION 7. FISCAL YEAR. The fiscal year of the corporation shall be determined by resolution
of the Board of Directors.
SECTION 8. CHECKS. All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the corporation shall be signed by such
officer or officers, agent or agents of the corporation, and in such manner as shall be determined
from time to time by resolutions of the Board of Directors.
SECTION 9. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required by these By-Laws to
be given, personal notice is not meant unless expressly so stated, and any notice so required shall
be deemed to be sufficient if given by depositing the same in the United States mail, postage
prepaid, addressed to the person entitled thereto at his address as it
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appears on the records of the corporation, and such notice shall be deemed to have been given
on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive
notice of any meetings except as otherwise provided by Statute.
Whenever any notice whatever is required to be given under the provisions of any law, or under
the provisions of the Certificate of Incorporation of the corporation or these By-Laws, a waiver
thereof in writing, signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
SECTION 1. NATURE OF INDEMNITY. 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, by reason of the fact that he
is or was or has agreed to become a director or officer of the corporation, or is or was serving or
has agreed to serve at the request of the corporation as director or officer, of another
corporation, partnership, joint venture, trust or other enterprise, or by reason of any action
alleged to have been taken or omitted in such capacity, and may indemnify any person who was or is
a party or is threatened to be made a party to such an action, suit or proceeding by reason of the
fact that he is or was or has agreed to become an employee or agent of the corporation, or is or
was serving or has agreed to serve at the request of the corporation as an 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 or on his behalf in connection with such action, suit or proceeding and
any appeal therefrom, 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; except that in the case of
an action or suit by or in the right of the corporation to procure a judgment in its favor (1) such
indemnification shall be limited to expenses (including attorneys fees) actually and reasonably
incurred by such person in the defense or settlement of such action or suit, and (2) 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
Delaware Court of Chancery 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
Delaware Court of Chancery or such other court shall deem proper. 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. SUCCESSFUL DEFENSE. To the extent that a director, officer, employee or agent of
the corporation has been successful on the merits or otherwise in defense of
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any action, suit or proceeding referred to in Section 1 hereof 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 3. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any indemnification of a director or
officer of the corporation under Section 1 hereof (unless ordered by a court) shall be made by the
corporation unless a determination is made that indemnification of the director or officer is not
proper in the circumstances because he has not met the applicable standard of conduct set forth in
Section 1 hereof. Any indemnification of an employee or agent of the corporation under Section 1
hereof (unless ordered by a court) may be made by the corporation upon a determination that
indemnification of the employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1 hereof. Any such determination shall be made
(1) 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, or (2) 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 (3) by the stockholders.
SECTION 4. ADVANCE PAYMENT OF EXPENSES. Expenses incurred by a director or officer in
defending a civil or criminal 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 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. Such expenses incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
SECTION 5. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any indemnification of a
director or officer of the corporation under Sections 1 and 2 or advance of costs, charges and
expenses to a director or officer under Section 4 of this Article, shall be made promptly, and in
any event within thirty days, upon the written request of the director or officer. If a
determination by the corporation that the director or officer is entitled to indemnification
pursuant to this Article is required, and the corporation fails to respond within sixty days to a
written request for indemnity, the corporation shall be deemed to have approved such request. If
the corporation denies a written request for indemnity or advancement of expenses, in whole or in
part, or if payment in full pursuant to such request is not made within thirty days, the right to
indemnification or advances as granted by this Article shall be enforceable by the director or
officer in any court of competent jurisdiction. Such persons costs and expenses incurred in
connection with successfully establishing his right to indemnification, in whole or in part, in any
such action shall also be indemnified by the corporation. It shall be a defense to any such action
(other than an action brought to enforce a claim for the advance of costs, charges and expenses
under Section 4 of this Article where the required undertaking, if any, has been received by the
corporation) that the claimant has not met the standard of conduct set forth in Section 1 of this
Article, but the burden of proving such defense shall be on the corporation. Neither the failure
of the corporation (including its Board of Directors, its independent legal counsel, and its
stockholders) to have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 1 of this Article, nor
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the conduct set forth in Section 1 of this Article, nor the fact that there has been an actual
determination by the corporation (including its Board of Directors, its independent legal counsel,
and its stockholders) that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the applicable standard
of conduct.
SECTION 6. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing indemnification provisions
shall be deemed to be a contract between the corporation and each director, officer, employee and
agent who serves in any such capacity at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are not in effect and any repeal or modification
thereof shall not affect any right or obligation then existing with respect to any state of facts
then or previously existing or any action, suit, or proceeding previously or thereafter brought or
threatened based in whole or in part upon any such state of facts. Such a contract right may not
be modified retroactively without the consent of such director, officer, employee or agent.
The indemnification provided by this Article shall not be deemed exclusive of any other rights
to which those indemnified may be entitled under any other By-Law, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his official capacity and as to
action in any other capacity while holding such office, and 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. The corporation may enter into a separate written
agreement with any director, officer, employee or agent of the corporation that expressly provides
for indemnification and reimbursement of such person to the full extent permitted by this Article,
on the same terms and conditions provided herein.
SECTION 7. INSURANCE. The corporation may purchase and maintain insurance on behalf of any
person who is or was or has agreed to become a director or officer of the corporation, or is or was
serving at the request of the corporation as director or officer of another corporation,
partnership, joint venture, trust or other enterprise against any liability asserted against him
and incurred by him or on his behalf in any such capacity, or arising out of his status as such,
whether or not the corporation should have the power to indemnify him against such liability under
the provisions of this Article.
SECTION 8. SEVERABILITY. If this Article or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify
each director or officer and may indemnify each employee or agent of the corporation as to costs,
charges and expenses (including attorneys fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the corporation, to the fullest extent
permitted by any applicable portion of this Article that shall not have been invalidated and to the
fullest extent permitted by applicable law.
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ARTICLE VII
AMENDMENTS
These By-Laws may be altered or repealed and By-Laws may be made at any annual meeting of the
stockholders or at any special meeting thereof if notice of the proposed alteration or repeal or
By-Law or By-Laws to be made be contained in the notice of such special meeting, by the affirmative
vote of a majority of the stock issued and outstanding and entitled to vote thereat, or by the
affirmative vote of a majority of the Board of Directors, at any regular meeting of the Board of
Directors, or at any special meeting of the Board of Directors, if notice of the proposed
alteration or repeal, or By-Law or By-Laws to be made, be contained in the notice of such special
meeting.
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