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8-K - AIM ImmunoTech Inc. | v207826_8k.htm |
Exhibit
3.1
RESTATED
AND AMENDED BYLAWS
of
HEMISPHERX
BIOPHARMA, INC.
(January
5, 2011)
ARTICLE
I.
MEETINGS
OF STOCKHOLDERS.
Section 1.1. Annual
Meeting. The annual meeting of stockholders shall be held at such
date, time and place, either within or without the State of Delaware, as may be
designated by resolution of the Board of Directors from time to
time. At the annual meeting, directors shall be elected and such
other business transacted as shall have been properly brought before the
meeting.
Section 1.2. Special
Meeting. Special meetings of stockholders for any purpose or purposes
may be called by the Chairman of the Board, the President, a majority of the
Board of Directors, or a majority of the Executive Committee, and shall be
called by the Secretary upon the request, in writing, of the stockholders owning
a majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote at such meeting. A stockholder
request for a special meeting shall be signed, dated and delivered to the
Secretary, shall state the purpose of the proposed meeting, and shall provide
the information required by Section 1.4(c) hereof. The Board of
Directors or, in the absence of action by the Board of Directors, the Chairman
of the Board, shall have the sole power to determine the date, time and place
for any special meeting of stockholders and to set a record date for the
determination of stockholders entitled to vote at such meeting pursuant to
Section 1.11 hereof. Following such determination, it shall be the
duty of the Secretary to cause notice to be given to the stockholders entitled
to vote at such meeting, in the manner set forth in Section 1.3 hereof, that a
meeting will be held at the place, time and date and in accordance with the
record date determined by the Board of Directors or the Chairman of the
Board. The stockholders requesting the special meeting shall not have
the power to give notice of the meeting.
Section 1.3. Notice of
Meetings. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given that shall
state the place, date and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the Certificate of
Incorporation or these By-laws, the written notice of any meeting shall be given
not less than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder entitled to vote at such meeting. If
mailed, such notice shall be deemed given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 1.4. Advance Notice
Requirements for Stockholder Proposals. The following procedures
shall govern all cases in which a stockholder seeks to propose business to be
addressed at a meeting of stockholders or to nominate persons to stand for
election as directors of the Corporation (a “Stockholder
Proposal”). No business shall be transacted at a meeting of
stockholders except in accordance with the following procedures. Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the
Corporation. Notwithstanding any language in these by-laws to the
contrary, this section shall not apply to any right of holders of preferred
shares of the Corporation to nominate and elect a specified number of directors
in certain circumstances to the extent such procedures are set forth in the
Certificate of Incorporation.
(a) Annual
Meetings of Stockholders.
(1) A
Stockholder Proposal may be brought before an annual meeting of stockholders
only (i) pursuant to the Corporation’s notice of meeting delivered pursuant to
Section 1.3 hereof (or any supplement thereto), (ii) by or at the direction of
the Board of Directors (or any duly authorized committee thereof) or the
Chairman of the Board or (iii) by any stockholder of the Corporation who was a
stockholder of record of the Corporation at the time the notice provided for in
this Section 1.4 is delivered to the Secretary of the Corporation, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in subparagraphs (2) and (3) of this paragraph (a) in this Section
1.4.
(2) For
a Stockholder Proposal to be properly brought before an annual meeting by a
stockholder pursuant to clause (iii) of paragraph (a)(1) of this Section 1.4,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation and the subject of the Stockholder Proposal must
otherwise be a proper matter for stockholder action as determined by the Board
of Directors. The stockholder’s notice shall contain, at a minimum,
the information set forth in Section 1.4(c). To be timely, a
stockholder’s notice , for all Stockholder Proposals other than the nomination
of candidates for director, shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than sixty (60) nor more than
ninety (90) days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within thirty (30) days before
or after such anniversary date, the stockholder’s notice in order to be timely
must be so received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting was
mailed or public disclosure of the date of the annual meeting was made,
whichever first occurs. To be timely, a stockholder’s notice ,with respect to a
Stockholder Proposal for nomination of candidates for director, shall be
delivered to the Secretary at the principal executive offices of the Corporation
not less than ninety (90) nor more than one hundred twenty (120) days prior to
the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, the stockholder’s notice in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
public disclosure of the date of the annual meeting was made, whichever first
occurs. In no event shall the public announcement of an adjournment
or postponement of an annual meeting of stockholders commence a new time period
(or extend any time period) for the giving of a stockholder’s notice as
described above.
(3) Notwithstanding
anything in paragraph (a)(2) of this Section 1.4 to the contrary, in the event
that the Stockholder Proposal relates to the nomination of candidates for
director and the number of directors to be elected to the Board of Directors of
the Corporation at an annual meeting is increased and there is no public
announcement by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least one hundred
days prior to the first anniversary of the preceding year’s annual meeting, a
stockholder’s notice required by this Section 1.4 shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the tenth day
following the day on which such public announcement is first made by the
Corporation.
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(b) Special
Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been described in the
Corporation’s notice of meeting given pursuant to Section 1.3
hereof. To the extent such business includes the election of
directors, a Stockholder Proposal nominating persons to stand for election as
directors may be made at a special meeting of stockholders only (i) by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or the Chairman of the Board, or (ii) by any stockholder of the Corporation who
is a stockholder of record at the time the notice provided for in this Section
1.4(b) is delivered to the Secretary of the Corporation, who is entitled to vote
at the special meeting and who gives timely notice in writing by the Secretary
of the Corporation. The stockholder’s notice shall contain, at a
minimum, the information set forth in Section 1.4(c). To be timely, a
stockholder’s notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
tenth day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a
new time period (or extend any time period) for the giving of a stockholder’s
notice as described above.
(c) Contents
of Stockholder’s Notice. Any stockholder’s notice required by this
Section 1.4 shall set forth the following information: As to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the Stockholder Proposal is made, the stockholder’s notice shall set forth (i)
the name and address of such stockholder and of such beneficial owner, as they
appear on the Corporation’s books, (ii) the class and number of shares of
capital stock of the Corporation which are owned beneficially and of record by
such stockholder and such beneficial owner and (iii) a representation that such
stockholder intends to appear in person or by proxy at the stockholder
meeting. For any Stockholder Proposal that seeks to nominate persons
to stand for election as directors of the Corporation, the stockholder’s notice
also shall include (i) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made, (ii) a representation whether the stockholders or the beneficial owners,
if any, intend or are part of a group which intends to (1) deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the
Corporation’s outstanding capital stock required to elect the nominee and/or (2)
otherwise solicit proxies from stockholders in support of such nomination, and
(iii) any other information relating to such stockholder that would be required
to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the rules and regulations promulgated thereunder. For any
Stockholder Proposal that seeks to nominate persons to stand for election as
directors of the Corporation, the stockholder’s notice also shall state, as to
each person whom the stockholders propose to nominate for election or reelection
as a director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation and employment of the person, (iii) the
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected, (iv) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of record by
the person and (v) any other information relating to the person that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act, and the rules and regulations
promulgated thereunder. The Corporation may require any proposed
nominee to furnish such other information as it may reasonably require to
determine the eligibility of such proposed nominee to serve as a director of the
Corporation. For any Stockholder Proposal that seeks to propose
matters to be considered at a stockholder meeting other than the nomination of
persons to stand for election as directors of the Corporation, the stockholder’s
notice shall set forth for each item of business proposed for consideration, (i)
a description of the item of business, (ii) the text of the proposal or business
(including the text of any resolutions proposed for consideration and in the
event that such business includes a proposal to amend the by-laws of the
Corporation, the language of the proposed amendment), (iii) the reasons for
conducting such business at the stockholder meeting, (iv) and any material
interest in such business of such stockholder and the beneficial owner, if any,
on whose behalf the Stockholder Proposal is made, and (v) any other information
relating to the stockholder, the beneficial owner, or the proposed business that
would be required to be disclosed in a proxy statement or other filings in
connection with solicitations of proxies relating to the proposed item of
business pursuant to Section 14 of the Exchange Act, and the rules and
regulations promulgated thereunder.
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(d) Only
Stockholder Proposals made in accordance with the procedures set forth in this
Section 1.4 shall be considered at an annual or special meeting of stockholders
of the Corporation. Except as otherwise provided by law, the chair of
the meeting shall have the power and duty to (i) determine whether a Stockholder
Proposal was made in accordance with the procedures set forth in this Section
1.4 and (ii) if any Stockholder Proposal is not in compliance with this Section
1.4, including whether the stockholder or beneficial owner, if any, on whose
behalf the Stockholder Proposal is made solicits (or is part of a group which
solicits) or fails to so solicit (as the case may be) proxies in support of the
Stockholder Proposal in compliance with such stockholder’s representation as
required by Section (c) of this Section 1.4, to declare that such Stockholder
Proposal shall be disregarded.
(e) For
purposes of this Section 1.4, “public announcement” shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(f) Notwithstanding
the foregoing provisions of this Section 1.4, a stockholder also shall comply
with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section
1.4. Nothing in this Section 1.4 shall be deemed to affect any rights
of stockholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Section 1.5. Postponement
and Cancellation of Meeting. Any previously scheduled annual or
special meeting of the stockholders may be postponed and any previously
scheduled annual or special meeting of the stockholders called by the Chairman
of the Board, the President, a majority of the Board of Directors, or a majority
of the Executive Committee may be canceled by resolution of the Board of
Directors upon public notice given prior to the time previously scheduled for
such meeting of stockholders.
Section 1.6 Quorum. Except as otherwise
provided by law, the Certificate of Incorporation or these by-laws, at each
meeting of stockholders the presence in person or by proxy of the holders of a
majority in voting power of the outstanding shares of stock entitled to vote at
the meeting shall be necessary and sufficient to constitute a quorum.
Notwithstanding the foregoing sentence, solely for purposes of the 2010 annual
meeting of stockholders, the presence in person or by proxy of the holders of 33
1/3% in voting power of the outstanding shares of stock entitled to vote at the
meeting shall be necessary and sufficient to constitute a quorum. In the absence
of a quorum, the chair of the meeting may adjourn the meeting from time to time
in the manner provided in Section 1.10 hereof until a quorum shall attend.
Shares of the Corporation’s own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of the
Corporation or any subsidiary of the Corporation to vote stock, including but
not limited to its own stock, held by it in a fiduciary capacity. The chair of
the meeting shall have the power and the duty to determine whether a quorum is
present at any meeting of stockholders.
Section 1.7. Officers for
Meeting of Stockholders. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any, or in his absence by the President,
or in his absence by a Vice President, or in the absence of the foregoing
persons by a chair designated by the Board of Directors, or in the absence of
such designation by a chair chosen at the meeting by a plurality
vote. The Secretary shall act as secretary of the meeting, but in his
absence the chair of the meeting may appoint any person to act as secretary of
the meeting.
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Section 1.8. Conduct of
Meetings. Every meeting of stockholders shall be presided over by the
chair of the meeting selected pursuant to Section 1.7, hereof. The
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be determined by the chair
of the meeting and announced at the meeting. The Board of Directors
may adopt by resolution such rules and regulations for the conduct of the
meeting of stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the chair of the meeting shall have the exclusive right and authority
to prescribe such rules, regulations and procedures and to do all such acts as,
in the judgment of the chair, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by
the Board of Directors or prescribed by the chair of the meeting, may include,
without limitation, the following: (i) the establishment of an agenda or order
of business for the meeting; (ii) rules and procedures for maintaining order at
the meeting and the safety of those present; (iii) limitations on attendance at
or participation in the meeting to stockholders of record of the Corporation,
their duly authorized and constituted proxies or such other persons as the chair
of the meeting shall determine; (iv) restrictions on entry to the meeting after
the time fixed for the commencement thereof; and (v) limitations on or the
elimination of time allotted to questions or comments by
participants. Unless and to the extent determined by the Board of
Directors or the chair of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary
procedure.
Section
1.9. Voting; Proxies. Except as otherwise provided by or
pursuant to the provisions of the Certificate of Incorporation, each stockholder
entitled to vote at any meeting of stockholders shall be entitled to one vote
for each share of stock held by such stockholder which has voting power upon the
matter in question. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. A
proxy shall be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by delivering a proxy in accordance
with applicable law bearing a later date to the Secretary of the
Corporation. Voting at meetings of stockholders need not be by
written ballot. At all meetings of stockholders, a plurality of the
votes cast shall be sufficient to elect directors. All other
elections and questions shall, unless otherwise provided by the Certificate of
Incorporation, these by-laws, the rules or regulations of any stock exchange
applicable to the Corporation, or applicable law or pursuant to any regulation
applicable to the Corporation or its securities, be decided by the affirmative
vote of the holders of a majority in voting power of the shares of stock of the
Corporation which are present in person or by proxy and entitled to vote
thereon.
Section 1.10. Adjournment of
Meeting. Any meeting of stockholders, annual or special, may be
adjourned solely by the chair of the meeting from time to time to reconvene at
the same or some other time, date and place. The stockholders present
at a meeting shall not have authority to adjourn the meeting. Notice
need not be given of any such adjourned meeting if the time, date and place
thereof are announced at the meeting at which the adjournment is
taken. If the time, date and place of the adjourned meeting are not
announced at the meeting at which the adjournment is taken, then the Secretary
of the Corporation shall give written notice of the time, date and place of the
adjourned meeting not less than ten (10) days prior to the date of the adjourned
meeting. Notice of the adjourned meeting also shall be given if the
meeting is adjourned in a single adjournment to a date more than 30 days or in
successive adjournments to a date more than 120 days after the original date
fixed for the meeting.
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At an adjourned meeting at which a
quorum is present, the stockholders may transact any business which might have
been transacted at the original meeting. Once a share is represented
for any purpose at a meeting, it shall be present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting unless a new
record date is or must be set for the adjourned meeting. A new record
date shall be set if the meeting is adjourned in a single or successive
adjournments to a date more than 120 days after the original date fixed for the
meeting. If after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting consistent with
the new record date.
Section 1.11 Fixing Date for
Determination of Stockholders of Record.
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 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 other than stockholder action by
written consent, the Board of Directors 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 of Directors, 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 (60) nor less than ten (10) days before the original date
of such meeting, and (ii) in the case of any other lawful action
other than stockholder action by written consent, shall not be more than sixty
days prior to such other action. If no record date is fixed by the
Board of Directors: (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, and (ii) the record date for determining stockholders
for any other purpose (other than stockholder action by written consent) shall
be at the close of business on the day on which the Board of Directors 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 of
Directors may fix a new record date for the adjourned meeting and shall fix a
new record date for the adjourned meeting if the meeting is adjourned in a
single or successive adjournments to a date more than 120 days after the
original date fixed for the meeting.
Section 1.12. Procedures for
Stockholder Action by Consent.
1.12.1 Request for
Record Date. The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting shall be as
fixed by the Board of Directors or as otherwise established under this Section
1.12.1. Any person seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
addressed to the Secretary and delivered to the Corporation and signed by a
stockholder of record, request that a record date be fixed for such
purpose. The written notice shall contain at a minimum the
information required in Section 1.4(c) for a Stockholder Proposal and shall
state the reasons for soliciting consents for such action. The Board
of Directors shall have ten (10) days following the date of receipt of the
notice to determine the validity of the request, including the sufficiency of
the information provided. During the ten (10) day period, the
Corporation may require the stockholder of record and/or beneficial owner
requesting a record date for proposed stockholder action by consent to furnish
such other information as it may reasonably require to determine the validity of
the request for a record date. Following the determination of the
validity of the request, and no later than ten (10) days after the date on which
such request is received by the Corporation, the Board of Directors may fix a
record date for such purpose which shall be no more than ten (10) days after the
date upon which the resolution fixing the record date is adopted by the Board of
Directors and shall not precede the date such resolution is
adopted. If the Board of Directors fails within ten (10) days after
the date the Corporation receives such notice to fix a record date for such
purpose, the record date shall be the day on which the first written consent is
delivered to the Corporation in the manner described in Section 1.12.3 below
unless prior action by the Board of Directors is required by law, in which event
the record date shall be at the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action.
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1.12.2 Form of
Consent. Every written consent purporting to take or authorize the
taking of corporate action and/or related revocations (each such written consent
and related revocation is referred to in this Section 1.12 as a “Consent”) shall
bear the date of signature of each stockholder who signs the Consent, and no
Consent shall be effective to take the corporate action referred to therein
unless, within 60 days of the earliest dated Consent delivered in the manner
required by this Section 1.12, Consents signed by a sufficient number of
stockholders to take such action are so delivered to the
Corporation.
1.12.3 Delivery of
Consent. A Consent shall be delivered to the Corporation by delivery
to its registered office in the State of Delaware or to the Secretary of the
Corporation at the Corporation’s principal place of
business. Delivery to the Corporation’s registered office shall be
made by hand or by certified or registered mail, return receipt
requested.
In the event of the delivery to the
Corporation of a Consent, the Secretary of the Corporation shall provide for the
safe-keeping of such Consent and shall promptly conduct such ministerial review
of the sufficiency of the Consents and of the validity of the action to be taken
by stockholder consent as the Secretary deems necessary or appropriate,
including, without limitation, whether the holders of a number of shares having
the requisite voting power to authorize or take the action specified in the
Consent have given consent; provided, however, that if the corporate action to
which the Consent relates is the removal or replacement of one or more members
of the Board of Directors, the Secretary of the Corporation shall promptly
designate two persons, who shall not be members of the Board of Directors, to
serve as Inspectors with respect to such Consent and such Inspectors shall
discharge the functions of the Secretary of the Corporation under this Section
1.12.3. If after such investigation the Secretary or the Inspectors
(as the case may be) shall determine that the Consent is valid and that the
action therein specified has been validly authorized, that fact shall forthwith
be certified on the records of the Corporation kept for the purpose of recording
the proceedings of meetings of stockholders, and the Consent shall be filed in
such records, at which time the Consent shall become effective as stockholder
action. In conducting the investigation required by this Section
1.12.3, the Secretary or the Inspectors (as the case may be) may, at the expense
of the Corporation, retain special legal counsel and any other necessary or
appropriate professional advisors, and such other personnel as they may deem
necessary or appropriate to assist them, and shall be fully protected in relying
in good faith upon the opinion of such counsel or advisors.
No action by written consent without a
meeting shall be effective until such date as the Secretary or the Inspectors
(as the case may be) certify to the Corporation that the Consents delivered to
the Corporation in accordance with Section 1.12.3 represent at least the minimum
number of votes that would be necessary to take the action.
Nothing contained in this Section
1.12.3 shall in any way be construed to suggest or imply that the Board of
Directors or any stockholder shall not be entitled to contest the validity of
any Consent or revocation thereof, whether before or after such certification by
the Secretary or the Inspectors, or to take any other action (including, without
limitation, the commencement, prosecution, or defense of any litigation with
respect thereto, and the seeking of injunctive relief in such
litigation).
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Section 1.13. Inspectors of
Election. The Corporation may, and shall if required by law, in
advance of any meeting of stockholders, appoint one or more inspectors of
election, who may be employees of the Corporation, to act at the meeting or any
adjournment thereof and to make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. In the event that no inspector so
appointed or designated is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or
her duties, shall take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector or inspectors so appointed or designated
shall, (i) ascertain the number of shares of capital stock of the Corporation
outstanding and the voting power of each such share, (ii) determine the shares
of capital stock of the Corporation represented at the meeting and the validity
of proxies and ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors, and (v) certify their determination
of the number of shares of capital stock of the Corporation represented at the
meeting and such inspectors’ count of all votes and ballots. Such
certification and report shall specify such other information as may be required
by law. In determining the validity and counting of proxies and
ballots cast at any meeting of stockholders of the Corporation, the inspectors
may consider such information as is permitted by applicable law. No
person who is a candidate for an office at an election may serve as an inspector
at such election.
Section 1.14 List of
Stockholders Entitled to Vote. The Secretary shall prepare and make,
at least ten (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 ten (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
whole time thereof and may be inspected by any stockholder who is
present. Upon the willful neglect or refusal of the directors to
produce such a list at any meeting for the election of directors, they shall be
ineligible for election to any office at such meeting. Except as
otherwise provided by law, the stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the list of
stockholders or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
ARTICLE
II.
BOARD OF
DIRECTORS.
Section
2.1 Number. The Board of Directors shall consist of one or
more members, the number thereof to be determined from time to time by
resolution of the Board of Directors. Directors need not be
stockholders.
Section
2.2. Qualifications. No person who is or has been within the last
five (5) years (a) under Critical Investigation by the Food and Drug
Administration (“FDA”) (any such person, an “FDA Investigatee”), (b) under
investigation for scientific or medical misconduct by any duly constituted
regulatory, administrative or governmental authority worldwide (any such person,
and “Scientific/Medical Investigatee”) and (c) under charges by or investigation
for criminal charges of any nature, including misdemeanors involving moral
turpitude, by any duly constituted governmental authority worldwide (any such
person, and “Criminal Investigatee”) and no person who is or has been within the
last five (5) years an Affiliate or Associate of any FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee (“Related
Investigatee") shall be eligible to be elected or to serve as a director of the
corporation; provided,
however, that a director of the corporation who is validly nominated and
elected a director but who after such election becomes a FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Related Investigatee
shall not solely by reason of so becoming or being a FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Related Investigatee
cease to be a director and instead shall continue as a director for the reminder
of the term for which such director was elected or until such director’s
resignation or removal; provided further, however, that it shall be the duty of
any such director promptly to notify the Board of Directors that such director
is or has become a FDA Investigatee, Scientific/Medical Investigatee or Criminal
Investigatee or Related Investigatee and it also shall be the duty of any such
director, either to promptly take all steps as may be necessary to cause such
director to be neither a FDA Investigatee, Scientific/Medical Investigatee or
Criminal Investigatee or Related Investigatee, or, it all such steps cannot be
or have not been taken and such director continues to be either a FDA
Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee and the pertinent Critical Investigation has not been
Finally Resolved within the pertinent Resolution Period, to resign as a director
of the corporation, effective immediately, at or before the end of such
Resolution Period.
8
|
(a)
|
For
purposes of this Section, the following terms shall have the following
respective meanings:
|
(i)
“Affiliate” means any person (or group of persons having any written or
unwritten agreement
, arrangement or understanding, whether of not enforceable, relating to any
Critical Investigation) who or which, directly, or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control
with, any FDA Investigatee, Scientific/Medical Investigatee or Criminal
Investigatee. For purposes of the foregoing definitions, the term “control”
(including the terms “controlling” “controlled by” and “under common control
with”) means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise, and a “controlling”
relationship between any person (or such a group) and another person shall be
deemed to exist whenever (but is not limited to the situation in which) the
former person (or members of such a group) directly or indirectly holds or owns
at least twenty percent (20%) of the aggregate voting power with respect to, the
latter person.
(ii) “Associates”
means any person who or which:
(1) is an
officer, partner, director, trustee or similar fiduciary of, or authorized
to act in any similar capacity with respect to, any FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee, any Affiliate or any
other Associate of a FDA Investigatee, Scientific/Medical Investigatee or
Criminal Investigatee;
(2) is
directly or indirectly, the holder of owner of at least ten percent (10%) any
class or series of equity securities issued by any FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or
Associate;
(3) has
a substantial beneficial interest in any FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Affiliate which is a trust or estate;
or
(4) is a
member of the immediate family of any FDA Investigatee, any Affiliate or
any other
person described in (1), (2), or (3) above.
For
purposes of the foregoing definition, a person’s “immediate family” includes
such person’s spouse, children, siblings, parents-in-law, sons- and
daughter-in-law, and brother- and sister-in-law.
9
(iii) Critical
Investigation means any investigation by the FDA which has reached the stage of
the issuance of a “Warning Letter” by the FDA and which might reasonably be
expected, absent immediate and complete remediation, to lead to seizure of
assets, injunctions or criminal indictments.
(iv) When
used with respect to any particular Critical Investigation, the term “Finally
Resolved” means that the FDA has issued a written statement that the Critical
Investigation has been satisfactorily resolved and terminated.
(v) “Resolution
Period” means, in any pertinent case, the ninety (90) day period (or
longer period, not exceeding one hundred fifty (150) days, as hereafter
contemplated by the proviso to this definition) beginning on the earlier of (1)
the date on which a director of the corporation notifies the Board of Directors
that such director is or has become a FDA Investigatee or Related Person or (2)
the date on which the Board of Directors determines that a director of the
corporation is or has become a FDA Investigatee or Related FDA Investigatee;
provided, however, that
the Board of Directors may (but is not required to) extend a Resolution Period
for up to an additional sixty (60) days if the director establishes to the
Board’s satisfaction a reasonable likelihood that during such extended period
the pertinent Critical Investigation will be Finally Resolved or such director
will cease to be both a FDA Investigatee and a Related FDA
Investigatee.
(vi) “Subsidiary”
means any corporation or other entity at least fifty percent (50%) of the
equity of which is owned, directly or indirectly, by the
corporation.
(b) The
Board of Directors of the corporation (acting by at least a majority of all
Directors,
excluding any who have acknowledged themselves to be or have been determined to
be FDA Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee at the time of such Board action and excluding any director
or directors whose status as FDA Investigatee, Scientific/Medical Investigatee
or Criminal Investigatee or Related Investigatee is the subject of such action)
shall have the authority to determine whether any director of the corporation is
or is not or has ceased to be a FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Related Investigatee, and the Board of
Directors (acting by at least a majority of all directors, excluding any who
have acknowledged themselves to be or have been determined to be FDA
Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee) shall have the authority to determine whether any person
nominated or proposed for nomination as a director or who is the subject of a
shareholder request as hereinafter provided is ineligible to be so nominated and
elected by virtue or being a FDA Investigatee, Scientific/Medical Investigatee
or Criminal Investigatee or Related Investigatee. Each such Board determination
shall be based upon such information as has been brought to the attention of the
Board (whether in a shareholder request or otherwise) at the time such
determination is made, and no Board determination that any director or other
person is or is not or has ceased to be a FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Related Investigatee shall preclude the
Board from reconsidering the matter and making the contrary determination in
light of any facts or circumstances first coming to the attention of the Board
after the prior determination was made.
(c) The
Board of Directors shall not nominate any person for election as a director
of the corporation, unless such prospective nominee has provided the Board with
all such information as the Board (or any member thereof not excluded from
determining the status of such person as a FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Related Investigatee) has deemed
necessary or appropriate to enable the Board to determine such status and with a
signed statement by the prospective nominee that such person, having reviewed
this Section, is aware of no reason not disclosed to the Board why he or she
would or might be considered a FDA Investigatee, Scientific/Medical Investigatee
or Criminal Investigatee or Related Investigatee (which statement also shall
include an undertaking by such person that if he or she is nominated, such
person now promptly will inform the Board, by written notice to the Chairman of
the Board or the Secretary of the corporation, if at any time prior to the
election to which such person's nomination relates he or she becomes aware of
any fact or circumstance, whether in existence on the date such undertaking is
given or arising afterward, which has given such person any reason to believe
that he or she is or might be considered a FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Related Investigatee), and unless after
receipt of such information and such statement, the Board has determined that
the prospective nominee is not a FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Related Investigatee.
10
(d) Any
shareholder who is uncertain whether any person such shareholder desires
to nominate for election as a director of the corporation (a “candidate”) is a
FDA Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Person may request a determination from the Board concerning that
matter. Any such request must be in writing, identify the candidate, set forth
all reasons why the shareholder has such uncertainty concerning the candidate,
explain why the shareholder believes that the candidate should not be considered
a FDA Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee and include an undertaking by or on behalf of the
shareholder that, if the candidate is determined not to be a FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Related
Investigatee, the shareholder promptly will inform the Board in the manner
specified in paragraph (e) above if any time prior to the election of directors
next occurring the shareholder learns of any fact or circumstance (whether in
existence on the dare of the request or arising afterward) which has given the
shareholder any other reason to believe that or to be uncertain whether the
candidate is or might be considered a FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Related Investigatee and believes for
the reasons stated in the request that he or she should not be considered a FDA
Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee, which statement also shall include an undertaking by the
candidate comparable to that of the requesting shareholder. With respect to any
meeting at which directors are to be elected, a shareholder may submit requests
as to any number of candidates up to and including five times at which the
number of directors to be elected at such meeting. A request may be submitted at
any time at which the shareholder properly may give notice of intent to nominate
a candidate for election as a director (other than a time at which such giving
of notice of intent is proper only by virtue of the provisions of paragraph (b)
of this Section), and no request may be submitted at any other time. No request
shall be deemed “submitted” for any purposes hereunder unless and until it is
delivered in person to the Chairman of the Board or the Secretary of the
corporation or delivered to the principal offices of the corporation addressed
to the attention of the Chairman or the Secretary. No request shall constitute a
notice of intent to nominate any candidate unless it expressly states that it is
intended as such a notice and it otherwise complies with all applicable
requirements for such a notice. Neither submission of a request, nor any action
taken thereafter with respect to such request, shall operate as a waiver of or
otherwise relieve any shareholder of any otherwise applicable procedural
requirements respecting nomination of director candidates, except as and to the
extent contemplated in paragraph (b).
(e) If any request
satisfying the requirements of paragraph (f) is timely and property submitted,
the Board of Directors, within ten days following the date such request is
submitted (i.e., if it is impossible or impracticable to do so during such
period, as soon as practicable thereafter), shall consider the request and
determine whether the candidate who is the subject of the request is ineligible
to be nominated or elected a director by virtue of being a FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Related
Investigatee. As promptly as possible following such action, the
requesting shareholder shall be notified in writing of the nature of such
determination and, if the determination made is that the candidate is a FDA
Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee, the basis for such determination. In any other
case in which the Board determines that any candidate as to which a notice of
intent to nominate has been given is ineligible to be nominated or elected a
director by virtue of being a FDA Investigatee, Scientific/Medical Investigatee
or Criminal Investigatee or Related Investigatee (including any case in which a
contrary determination previously has been made in response to a shareholder
request), the shareholder having given such notice of intent shall be notified
in writing of such determination and the basis therefor as promptly as possible
thereafter.
11
(f) If a candidate who is
the subject of a proper and timely submitted request meeting the requirements of
paragraph (f) is determined by the Board not to be a FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Related Investigatee
and the request was submitted at least five days in advance of the last date on
which the requesting shareholder otherwise would have been entitled to give
notice of intent to nominate such candidate, then the Board’s determination
shall operate as a waiver of the time limits otherwise applicable to the giving
of such notice of intent to the extent, if any, necessary to afford the
shareholder a period of five days following the date on which notice of the
Board’s determination is given to the shareholder within which to give notice of
intent to nominate such candidate. If, in response to a timely and
properly submitted request, the Board determines that the candidate who is the
subject of the request is a FDA Investigatee, Scientific/Medical Investigatee or
Criminal Investigatee or Related Investigatee and the request was submitted at
least five days in advance of the last date on which the requesting shareholder
otherwise would have been entitled to give notice of intent to nominate, then
the Board’s determination shall operate as a waiver of the time limits otherwise
applicable to the giving of notice of intent to nominate to the extent, if any,
necessary to afford the requesting shareholder a period of fifteen days
following the date on which notice of the Board’s determination is given to the
shareholder within which to give notice of intent to nominate another person in
lieu of the ineligible candidate. In any other case in which the
Board determines that a candidate is a FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Related Investigatee, such
determination shall operate as a waiver if and only to the extent expressly so
provided in the resolutions setting forth such determination or subsequent Board
resolution. Whenever any shareholder is afforded an additional time
period within which to give notice of intention to nominate, the Board may
afford the other shareholders of the corporation a comparable additional period
of time within which to give such notice.
Section 2.3 Election;
Resignation; Vacancies. At each annual meeting, the stockholders
shall elect directors each of whom shall hold office for a term of one year or
until his successor is duly elected and qualified, subject to such director’s
earlier death, resignation, disqualification or removal. Any director
may resign at any time upon written notice to the Corporation. Such
resignation need not be accepted to be effective. Unless otherwise
provided by law or the Certificate of Incorporation, any newly created
directorship or any vacancy occurring on the Board of Directors for any cause
may be filled solely by a majority of the remaining members of the Board of
Directors, although such majority is less than a quorum, or by the sole
remaining director, and each director so elected shall hold office until the
expiration of the term of office of the director so replaced or until the
director’s successor is elected and qualified. The stockholders shall
not have the power to appoint directors to any newly created directorship or
vacancy.
Section 2.4 Regular
Meetings. Regular meetings of the Board of Directors may be held at
such places within or without the State of Delaware and at such times as the
Board of Directors may from time to time determine. It shall not be
necessary to give notice of regular meetings of the Board of
Directors.
Section 2.5 Special
Meetings. Special meetings of the Board of Directors may be called by
the Chairman of the Board, the President, the Executive Committee, or by three
(3) or more directors. Notice of a special meeting of the Board of
Directors shall be given by the person or persons calling the meeting at least
twenty-four hours before the special meeting if such notice is given personally
or by telephone or sent by telegram, telecopier or other electronic
means. Notice of a special meeting of the Board of Directors shall be
given by the person or persons calling the meeting at least three days before
the special meeting if given by regular mail. No notice of a special
meeting shall be necessary if the time and place of the special meeting was set
by resolution at a validly convened meeting of the Board of
Directors. The notice of a special meeting need not state the purpose
or purposes of the meeting.
12
Section 2.6 Telephonic
Meetings Permitted. Members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting
thereof by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this by-law shall constitute presence in
person at such meeting.
Section 2.7 Quorum; Vote
Required for Action. At all meetings of the Board of Directors a
majority of the whole Board of Directors shall constitute a quorum for the
transaction of business. Except in cases in which the certificate of
incorporation, these by-laws or applicable law otherwise provides, the vote of a
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 2.8. Officers for
Board Meetings. Meetings of the Board of Directors shall be presided
over by the Chairman of the Board, if any, or in his absence by the Vice
Chairman of the Board, if any, or in his absence by the President, or in their
absence by a chairman chosen at the meeting. The Secretary shall act
as secretary of the meeting, but in his absence the chair of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.9. Independent
Directors And Board Structure. A majority of the Board of Directors
shall be comprised of independent directors. The Chief Executive
Officer should be a member of the Board of Directors. In order to ensure the
greatest number of independent directors on a board of manageable size, other
direct management representation should be kept to a minimum and should in no
event exceed two other management directors.
The Board of Directors shall make clear
to Senior Management of the Company that board membership is neither necessary
to their present positions nor a prerequisite to a higher management position in
the Company. Attendance of management staff at Board Meetings should be at the
discretion of the Chairman of the Board but should be encouraged by the
Board. The Board shall have full and direct access to members of
Senior Management and should be encouraged to request reports directly to the
Board by any member of Senior Management. Board members should use
judgment in dealings with management so that they do not distract management
from the business operations of the Company.
Conflicts of Interest. A
director’s personal financial or family relationships may occasionally give rise
to that director’s material personal interest in a particular
issue. There will be times when a director’s material personal
interest in an issue will limit that director’s ability to vote on that
issue. The Governance Committee of the Board of Directors shall
determine whether such a conflict of interest exists on a case-by-case basis,
including the determination as to materiality under items (c) and (f) of this
Section 2.9. The Governance Committee shall take appropriate steps to
identify such potential conflicts and to ensure that a majority of the directors
voting on an issue are both disinterested and independent with respect to that
issue. A determination by the Governance Committee on any issue of
independence or conflict of interest shall be final and not subject to
review.
13
For purposes of this Section, an
“independent director” means a director who: (a) is neither a current employee
nor a former member of Senior Management of the Company or an Affiliate; (b) is
not employed by a provider of professional services to the Company; (c) does not
have any business relationship with the Company, either personally or through a
company of which the director is an officer or a controlling shareholder, that
is material to the Company or to the director; (d) does not have a close family
relationship, by blood, marriage or otherwise with any member of Senior
Management of the Company or one of the Company’s Affiliates; (e) is not an
officer of a company of which the Company’s chairman or chief executive officer
is also a board member; or (f) does not personally receive or is not an employee
of a foundation, university, or other institution that receives grants or
endowments from the Company, that are material to the Company or to either the
recipient and/or the foundation, university, or institution.
“Senior Management” includes the chief
executive, chief operating, chief financial, chief legal and chief accounting
officers, president, vice president(s), treasurer, secretary and the controller
of the Company.
“Affiliate” includes any person or
entity which, alone or by contractual obligation, owns or has the power to vote
more than twenty-five (25) percent of the equity interest in another, unless
some other person or entity acting alone or with another by contractual
obligation owns or has the power to vote a greater percentage of the equity
interest. A subsidiary is considered an affiliate if it is at least eighty (80)
percent owned by the Company and accounts for at least twenty-five (25) percent
of the Company’s consolidated sales or assets.
Section 2.10 Action by
Written Consent of Directors. Unless otherwise restricted by the
certificate of incorporation or these by-laws, 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 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 proceedings of the Board of
Directors or such committee.
Section
2.11 Committees. The Board of Directors may designate one
or more committees, 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. 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 to the
extent provided in the resolution of the Board of Directors, 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.
Section 2.12. Committee
Rules. Unless the Board of Directors otherwise provides, each
committee designated by the Board of Directors may make, alter and repeal rules
for the conduct of its business. In the absence of such rules each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II hereof.
Section 2.13. Executive
Committee. There shall be an Executive Committee to consist of such number of
directors of the Board of Directors (the “Executive Committee”) to consist of
that number of directors as the Board of Directors may from time to time
determine. The Board of Directors shall have power at any time to
change the number of the Executive Committee, except that a reduction in the
number of members of the Executive Committee shall not affect any currently
serving member. The Board of Directors may remove any member of the
Executive Committee at any time with or without cause and may fill vacancies in
the Committee by election from the members of the Board of
Directors.
14
When the Board of Directors is not in
session, the Executive Committee shall have and may exercise all the power and
authority of the Board of Directors in the management and direction of the
business and affairs of the Corporation, and shall have power to authorize the
seal of the Corporation to be affixed to all papers which may require
it. All actions of the Executive Committee shall be reported to the
Board of Directors at the meeting next succeeding such action, provided,
however, that such report need not be made to the Board of Directors if prior to
such meeting copies of the written minutes of the meetings of the Executive
Committee at which such action has been taken shall have been mailed or
delivered to all members of the Board of Directors.
ARTICLE
III.
OFFICERS.
Section 3.1 Executive
Officers; Election; Qualifications; Term of Office; Resignation; Removal;
Vacancies. The Board of Directors shall elect a President and
Secretary, and it may, if it so determines, choose a Chairman of the Board and a
Vice Chairman of the Board from among its members. The Board of
Directors may also choose one or more Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers. Each
such officer shall hold office until the first meeting of the Board of Directors
after the annual meeting of stockholders next succeeding his election, and until
his successor is elected and qualified or until his earlier resignation or
removal. Any officer may resign at any time upon written notice to
the Corporation. Such resignation need not be accepted to be
effective. The Board of Directors may remove any officer with or
without cause at any time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the Corporation. Any
number of offices may be held by the same person. Any vacancy
occurring in any office of the Corporation by death, resignation, removal or
otherwise may be filled for the unexpired portion of the term by the Board of
Directors.
Section 3.2 Powers and
Duties of Executive Officers. The officers of the Corporation shall
have such powers and duties in the management of the Corporation as may be
prescribed in a resolution by the Board of Directors and, to the extent not so
provided, as generally pertain to their respective offices, subject to the
control of the Board of Directors. The Board of Directors may require
any officer, agent or employee to give security for the faithful performance of
his duties.
ARTICLE
IV.
SHARES OF
STOCK.
Section
4.1 Certificates. Every holder of stock shall be entitled
to have a certificate signed by or in the name of the Corporation by the
Chairman or Vice Chairman of the Board of Directors, if any, or 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 him in the Corporation. Any of or all the signatures
on the 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 4.2 Lost, Stolen or
Destroyed Stock Certificates; Issuance of New Certificates. The
Corporation may issue a new certificate of stock in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the Corporation may require the owner of the lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
15
ARTICLE
V.
MISCELLANEOUS
PROVISIONS.
Section 5.1 Fiscal
Year. The fiscal year of the Corporation shall be determined by
resolution of the Board of Directors.
Section
5.2 Seal. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 5.3. Signature of
Checks, etc. All checks and drafts on the bank accounts of the
Corporation, and all bills of exchange and promissory notes, and all
acceptances, obligations and other instruments for the payment of money shall be
signed by such officer or officers, or agent or agents, as shall be thereunto
authorized, from time to time, by the Board of Directors or the Executive
Committee.
Section 5.4 Waiver of Notice
of Meetings of Stockholders, Directors and Committees. Any written
waiver of notice, 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 the 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.
Section 5.5 Form of
Records. Any records maintained by the Corporation in the regular
course of its business, including its stock ledger, books of account, and minute
books, may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, microphotographs, or any other information storage device, provided
that the records so kept can be converted into clearly legible form within a
reasonable time.
Section 5.6 Amendment of
By-laws. These by-laws may be altered, amended or repealed, and new
by-laws made, by the Board of Directors, but the stockholders may make
additional by-laws and may alter and repeal any by-laws whether adopted by them
or otherwise.
ARTICLE
VI.
INDEMNIFICATION
OF DIRECTORS, OFFICERS OR OTHER PERSONS.
Section 6.1 Right to
Indemnification. The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person (a “Covered Person”) who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
“proceeding”), by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the Corporation or,
while a director or officer of the Corporation, is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
Corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys’ fees) reasonably
incurred by such Covered Person. Notwithstanding the preceding
sentence, except as otherwise provided in Section 6.3, the Corporation shall be
required to indemnify a Covered Person in connection with a proceeding (or part
thereof) commenced by such Covered Person only if the commencement of such
proceeding (or part thereof) by the Covered Person was authorized by the Board
of Directors of the Corporation.
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Section 6.2 Prepayment of
Expenses. The Corporation shall pay the expenses (including
attorneys’ fees) incurred by a Covered Person in defending any proceeding in
advance of its final disposition, provided, however, that, to the extent
required by law, such payment of expenses in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the Covered
Person to repay all amounts advanced if it should be ultimately determined that
the Covered Person is not entitled to be indemnified under this Article VI or
otherwise.
Section
6.3 Claims. If a claim for indemnification or advancement
of expenses under this Article VI is not paid in full within thirty days after a
written claim therefor by the Covered Person has been received by the
Corporation, the Covered Person may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the
Corporation shall have the burden of proving that the Covered Person is not
entitled to the requested indemnification or advancement of expenses under
applicable law.
Section 6.4 Nonexclusivity
of Rights. The rights conferred on any Covered Person by this Article
VI shall not be exclusive of any other rights which such Covered Person may have
or hereafter acquire under any statute, provision of the certificate of
incorporation, these by-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 6.5 Other
Sources. The Corporation’s obligation, if any, to indemnify or to
advance expenses to any Covered Person who was or is serving at its request as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust, enterprise or nonprofit entity shall be reduced by any amount
such Covered Person may collect as indemnification or advancement of expenses
from such other Corporation, partnership, joint venture, trust, enterprise or
non-profit enterprise.
Section 6.6 Amendment or
Repeal. Any repeal or modification of the foregoing provisions of
this Article VI shall not adversely affect any right or protection hereunder of
any Covered Person in respect of any act or omission occurring prior to the time
of such repeal or modification.
Section 6.7. The rights
conferred on any Covered Person by this Article VI are contract rights and shall
continue as to a person who has ceased to be a director or officer and shall
inure the benefit of the person’s heirs, executors and
administrators.
Section 6.8. Other
Indemnification and Prepayment of Expenses. This Article VI shall not
limit the right of the Corporation, to the extent and in the manner permitted by
law, to indemnify and to advance expenses to persons other than Covered Persons
when and as authorized by appropriate corporate action.
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