AMENDED AND RESTATED
BY-LAWS
OF
INNOVATIVE CLINICAL SOLUTIONS, LTD.
ARTICLE I
Offices
The registered office shall be in the City of Wilmington, County of New
Castle, State of Delaware, and the name of the resident agent in charge thereof
is The Corporation Trust Company.
The corporation may also have offices at such other places within or
without the State of Delaware as the Board of Directors may from time to time
appoint or the business of the corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. Place of Meetings. All meetings of stockholders for any
purpose shall be held at such place, within or without the State of Delaware, as
shall be designated by the Board of Directors or the Chairman of the Board and
stated in the notice of the meeting.
Section 2. Annual Meeting. An annual meeting of the stockholders of the
corporation, for the election of Directors to succeed those whose terms expire
and for the transaction of such other business as may properly come before the
meeting, shall be held on such date and at such time as shall be fixed from time
to time by the Board of Directors and stated in the notice of the meeting.
Section 3. Special Meetings. Special meetings of the stockholders may
be called by the Chairman of the Board, by order of the Board of Directors or at
the request of holders of not less than twenty-five percent (25%) of the
Company's securities entitled to vote at such special meeting. Business
transacted at any special meeting shall be confined to the purpose or purposes
stated in the notice of such meeting.
Section 4. Notice of Meeting. Notice of the time and place of holding
each annual meeting and each special meeting of stockholders shall be given by
the Secretary, not less than ten nor more than sixty days before the meeting, to
each stockholder of record entitled to vote at such meeting. Notices of all
meetings of stockholders shall state the purposes for which the meetings are
held.
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Section 5. List of Stockholders. At least ten 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,
shall be prepared by the Secretary, who shall have charge of the stock ledger.
Such list shall be open for said ten days to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, either
at a place specified in the notice of the meeting (which place shall be within
the city where the meeting is to be held) or, if no such other place has been so
specified, at the place where the meeting is to be held. Such 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 present at the meeting.
Section 6. Quorum. At any meeting of stockholders, the holders of
issued and outstanding shares of capital stock which represent a majority of the
votes entitled to be cast thereat, present in person or represented by proxy,
shall constitute a quorum for the transaction of business. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time until a
quorum shall be present or represented. Unless the adjournment is for more than
thirty days or a new record date is fixed for the adjourned meeting, notice of
the adjourned meeting need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally called.
Section 7. Voting. At any meeting of the stockholders, every
stockholder having the right to vote shall be entitled to vote in person, or by
proxy appointed by an instrument in writing subscribed by such stockholder and
bearing a date not more than eleven months prior to said meeting. When a quorum
is present at any meeting, action of the stockholders on any matter properly
brought before a meeting shall require, and may be effected by the affirmative
vote of the holders of a majority of the stock present or represented and
entitled to vote and voting on such matter; except where a different vote is
required by an express provision of law, the Certificate of Incorporation or
these By-laws. Any election by stockholders shall be determined by a plurality
of the votes cast by the stockholders entitled to vote at the election. No
ballot shall be required for such an election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
Section 8. Fixing of Record Date. (a) 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 shall not
precede the date such record date is fixed and 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 such other action. If no record date is fixed, 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
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notice is given. The record date for any other purpose 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.
Section 9. Nomination of Directors. Only persons who are nominated in
accordance with the procedures set forth in the By-laws and the Certificate of
Incorporation shall be eligible to serve as Directors. Nominations of persons
for election to the Board of Directors of the corporation may be made at a
meeting of stockholders (a) by or at the direction of the Board of Directors or
(b) by any stockholder of the corporation who is a stockholder of record at the
time of giving of notice provided for in this Section 9, who shall be entitled
to vote for the election of directors at the meeting and who complies with the
notice procedures set forth in this Section 9. Such nominations, other than
those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the corporation not less than 60 days nor
more than 90 days prior to the meeting; provided, however, that in the event
that less than 70 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting or such public
disclosure was made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a
Director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of Directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a Director if elected);
and (b) as to the stockholder giving the notice (i) the name and address, as
they appear on the corporation's books, of such stockholder and (ii) the class
and number of shares of the corporation which are beneficially owned by such
stockholder. At the request of the Board of Directors, any person nominated by
the Board of Directors for election as a Director shall furnish to the Secretary
of the corporation that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. No person shall be eligible
to serve as a Director of the corporation unless nominated in accordance with
the procedures set forth in this By-law. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by the By-laws, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded. Notwithstanding the foregoing provisions of
this Section 9, a stockholder shall also comply with all applicable requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder with respect to the matters set forth in this Section.
Section 10. Notice of Business. At any meeting of the stockholders,
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only such business shall be conducted as shall have been brought before the
meeting (a) by or at the direction of the Board of Directors or (b) by any
stockholder of the corporation who is a stockholder of record at the time of
giving of the notice provided for in this Section 10, who shall be entitled to
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vote at such meeting and who complies with the notice procedures set forth in
this Section 10. For business to be properly brought before a stockholder
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the corporation not less than 60 days nor more than 90 days prior to
the meeting; provided, however, that in the event that less than 70 days' notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be received no later
than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
A stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the meeting (a) a brief description of the
business desired to be brought before the meeting and the reasons for conducting
such business at the meeting, (b) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business, (c) the class
and number of shares of the corporation which are beneficially owned by the
stockholder, and (d) any material interest of the stockholder in such business.
Notwithstanding anything in the By-laws to the contrary, no business shall be
conducted at a stockholder meeting except in accordance with the procedures set
forth in this Section 10. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the provisions of the By-laws,
and if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 10, a stockholder shall
also comply with all applicable requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder with respect to the
matters set forth in this Section.
ARTICLE III
Directors
Section 1. Directors and Their Terms of Office. There shall be a Board
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of Directors consisting of not less than three nor more than fifteen persons,
the exact number of Directors to be determined from time to time by resolution
adopted by affirmative vote of a majority of the number of Directors required at
the time to constitute a full board as fixed in or determined pursuant to these
By-laws as then in effect. The Directors shall, except as otherwise provided in
Section 3 of this Article, be elected in the manner provided in the Certificate
of Incorporation at the annual meeting or at any meeting of the stockholders
held in lieu of such annual meeting, which meeting, for the purposes of these
By-laws, shall be deemed the annual meeting, and each Director so elected shall
hold office until his successor is elected and qualified. A Director need not be
a stockholder. Within the limits above specified, the number of Directors may at
any time be increased or decreased by vote of the Directors at any meeting of
the Directors provided that no decrease in the number of Directors shall affect
the term of any Director in office.
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Section 2. Powers of Directors. The affairs, property and business of
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the corporation shall be managed by the Board of Directors which may exercise
all such powers of the corporation and do all such lawful acts and things as are
not by law or by the Certificate of Incorporation or these By-laws directed or
required to be exercised or done by the stockholders.
Section 3. Vacancies. If any vacancies occur in the Board of Directors
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caused by death, resignation, retirement, disqualification or removal from
office of any Directors or otherwise, or any new Directorship is created by any
increase in the authorized number of Directors, Directors to fill the vacancy or
vacancies or to fill the newly created Directorship may be elected solely by a
majority vote of the Directors then in office, whether or not a quorum, at any
meeting of the Board. The Directors chosen to fill the vacancy or vacancies in
the Board of Directors shall serve for the remainder of the term of the Director
who resigned or retired or who was disqualified or removed. The Directors chosen
to fill newly created Directorships shall hold office until their successors, if
any, are duly elected and qualified.
Section 4. Annual Meeting of Directors. The first meeting of each newly
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elected board may be held without notice immediately after an annual meeting of
stockholders (or a special meeting of stockholders held in lieu of an annual
meeting) at the same Place as that at which such meeting of stockholders was
held; or such first meeting may be held at such place (within or without the
State of Delaware) and time as shall be fixed by the consent in writing of all
the Directors, or may be called in the manner hereinafter provided with respect
to the call of special meetings.
Section 5. Regular Meetings of Directors. Regular meetings of the Board
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of Directors may be held at such times and at such place or places (within or
without the State of Delaware) as the Board of Directors may from time to time
prescribe. No notice need be given of any regular meeting and a notice, if
given, need not specify the purposes thereof.
Section 6. Special Meetings of Directors. Special meetings of the Board
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of Directors may be called at any time by or under the authority of the Chairman
of the Board and shall be called by him or by the Secretary on written request
of any two Directors or, if they fail to do so, by two Directors in the name of
the Secretary, to be held in each instance at such place (within or without the
State of Delaware) as the person calling the meeting may designate in the call
thereof. Notice of each special meeting of the Board of Directors, stating the
time and place thereof, shall be given to each Director by the Secretary, not
less than twenty-four hours before the meeting. Such notice need not specify the
purposes of the meeting.
Section 7. Quorum; Voting. At any meeting of the Board of Directors a
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majority of the number of Directors required to constitute a full Board of
Directors, as fixed in or determined pursuant to these By-laws as then in
effect, shall constitute a quorum for the transaction of business, but if a
quorum shall not be present at any meeting of Directors, the Directors present
thereat may adjourn the meeting from time to time without notice other than
announcement at the meeting, until a quorum shall be present. Except as
otherwise provided by law or by the Certificate of Incorporation or by the
By-laws, the affirmative vote of at least a majority of the Directors present at
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a meeting at which there is a quorum shall be the act of the Board of Directors.
Section 8. Meetings by Telephone. Members of the Board of Directors or
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of any committee thereof may participate in meetings of the Board of Directors
or of such 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 shall constitute presence in person at such
meeting.
Section 9. Action Without Meeting. Unless otherwise restricted by the
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Certificate of Incorporation, 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 of 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 of such
committee.
Section 10. Compensation. By resolution of the Board of Directors, the
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Directors, as such, may receive stated salaries for their services, and may be
allowed a fixed sum and expenses of attendance, if any, for attendance at each
regular or special meeting of the Board of Directors. Members of committees may
also be allowed a fixed sum and expenses of attendance, if any, for attending
committee meetings. Nothing herein contained shall preclude any Director from
serving the corporation in any other capacity and receiving compensation for
such services.
ARTICLE IV
Executive and Other Committees
The Board of Directors, by the affirmative vote of a majority of the
number of Directors required at the time to constitute a full board as fixed in
or determined pursuant to these By-laws as then in effect, may designate two or
more of its members to constitute an Executive Committee, which committee shall,
when the Board of Directors is not in session, have and may exercise, to the
extent provided by resolution of the Board of Directors, from time to time, all
the powers of the Board of Directors (including all action which may be taken by
the Board of Directors as by law, by the Certificate of Incorporation or by the
By-laws provided) insofar as such powers may be lawfully delegated, and may have
power to authorize the seal of the corporation to be affixed to all papers which
may require it.
The Board of Directors, by the affirmative vote of a majority of the
number of Directors required at the time to constitute a full board as fixed in
or determined pursuant to these By-laws as then in effect, may also appoint
other committees, the members of which may, but need not, be Directors, the
number composing such committees, not less than two, and the powers (to be
advisory only if all the members are not Directors) conferred upon them to be
determined by resolution of the Board of Directors.
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No committee shall have 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 corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the By-laws; and unless the resolution shall expressly so provide,
no committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Vacancies in the membership of committees shall be filled by the Board
of Directors at a regular meeting or at a special meeting.
At any meeting of any committee a majority of the whole committee shall
constitute a quorum and except as otherwise provided by statute or by the
Certificate of Incorporation or by the By-laws the affirmative vote of at least
a majority of the members present at a meeting at which there is a quorum shall
be the act of the committee.
The Secretary of the corporation, or in his absence, an Assistant
Secretary, or other person designated by a committee, shall act as secretary of
such committee.
The Executive Committee and each of the other committees, except as
otherwise provided by resolution of the Board of Directors, shall fix the time
and place of its meetings within or without the State of Delaware, shall adopt
its own rules and procedures, and shall keep a record of its acts and
proceedings and report the same from time to time to the Board of Directors.
ARTICLE V
Officers
Section 1. Officers and Their Election, Term of Office and Vacancies.
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The officers of the corporation shall be a Chairman of the Board, a President, a
Secretary, a Treasurer and such Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers as the Board of Directors may from time
to time determine and elect or appoint. All officers shall be elected annually
by the Board of Directors at their first meeting following the annual meeting of
stockholders or any special meeting held in lieu thereof and shall hold office
until their successors are duly elected and qualified. The Chairman of the Board
must be a Director. All other officers may, but need not be, members of the
Board of Directors. Two or more offices may be held by the same person. Any
officer elected by the Board of Directors may be removed at any time by the
Board of Directors. If any vacancy shall occur among the officers, it shall be
filled by the Board of Directors.
Section 2. Chairman of the Board. The Chairman of the Board shall be
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selected by the Board of Directors and shall have such duties and
responsibilities as determined by the Board of Directors, subject to the
supervision and control of the Board of Directors and such limitations as the
Board of Directors may from time to time impose. The Chairman of the Board when
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present shall preside at all meetings of the stockholders and of the Directors.
It shall be his duty and he shall have the power to see that all orders and
resolutions of the Board of Directors are carried into effect. The Chairman of
the Board shall perform such additional duties and have such additional powers
as the Directors shall designate. In the absence or disability of the Chairman
of the Board, his powers and duties shall be performed by such officer of the
corporation as the Board of Directors shall designate.
Section 3. President. Unless otherwise determined by the Board of
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Directors, the President shall have full control and responsibility for the
operations of the corporation. The President, at the request of the Board of
Directors, as soon as reasonably possible after the close of each fiscal year,
shall submit to the Board of Directors a report of the operations of the
corporation for such year and a statement of its affairs and shall from time to
time report to the Board of Directors all matters within his knowledge which the
interests of the corporation may require to be brought to its notice. The
President shall perform such duties and have such powers additional to the
foregoing as the Board of Directors shall designate.
Section 4. Vice Presidents. In the absence or disability of the
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President, his or her powers and duties shall be performed by the Vice
President, if only one, or, if more than one, by the one designated for the
purpose by the Board of Directors. Each Vice President shall have such other
powers and perform such other duties as the Board of Directors shall from time
to time designate.
Section 5. Treasurer. The Treasurer shall keep full and accurate
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accounts of receipts and disbursements in books belonging to the corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the corporation in such depositaries as shall be designated by the
Board of Directors or in the absence of such designation in such depositaries as
he shall from time to time deem proper. He or she shall disburse the funds of
the corporation as shall be ordered by the Board of Directors, taking proper
vouchers for such disbursements. He or she shall promptly render to the
President and to the Board of Directors such statements of his transactions and
accounts as the President and Board of Directors respectively may from time to
time require. The Treasurer shall perform such duties and have such powers
additional to the foregoing as the Board of Directors may designate.
Section 6. Assistant Treasurers. In the absence or disability of the
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Treasurer, his or her powers and duties shall be performed by the Assistant
Treasurer, if only one, or if more than one, by the one designated for the
purpose by the Board of Directors. Each Assistant Treasurer shall have such
other powers and perform such other duties as the Board of Directors shall from
time to time designate.
Section 7. Secretary. The Secretary shall issue notices of all meetings
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of stockholders and Directors and of the executive and other committees where
notices of such meetings are required by law or these By-laws. He or she shall
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keep the minutes of meetings of stockholders and of the Board of Directors and
of the executive and other committees, respectively, unless such committees
appoint their own respective secretaries and be responsible for the custody
thereof. Unless the Board of Directors shall appoint a transfer agent and/or
registrar, the Secretary shall be charged with the duty of keeping, or causing
to be kept, accurate records of all stock outstanding, stock certificates issued
and stock transfers. He or she shall sign such instruments as require his
signature and shall perform such other duties and shall have such powers as the
Board of Directors shall designate from time to time, in all cases subject to
the control of the Board of Directors. The Secretary shall have custody of the
corporate seal, shall affix and attest such seal on all documents whose
execution under seal is duly authorized. In his or her absence at any meeting,
an Assistant Secretary or the Secretary pro tempore shall perform his duties
thereat.
Section 8. Assistant Secretaries. In the absence or disability of the
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Secretary, his or her powers and duties shall be performed by the Assistant
Secretary, if only one, or, if more than one, by the one designated for the
purpose by the Board of Directors. Each Assistant Secretary shall have such
powers and perform such other duties as the Board of Directors shall from time
to time designate.
Section 9. Salaries. The salaries of officers, agents and employees
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shall be fixed from time to time by or under authority from the Board of
Directors.
ARTICLE VI
Resignations and Removals
Section 1. Officers, Agents, Employees and Members of Committees. Any
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officer, agent or employee of the corporation may resign at any time by giving
written notice to the Board of Directors or to the Chairman of the Board or to
the Secretary of the corporation, and any member of any committee may resign by
giving written notice either as aforesaid or to the committee of which he is a
member or to the chairman thereof. Any such resignation shall take effect at the
time specified therein, or if the time be not specified, upon receipt thereof,
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. The Board of Directors may at any
time, with or without cause, remove from office or discharge or terminate the
employment of any officer, agent, employee or member of any committee.
Section 2. Directors. Any Director of the corporation may resign at any
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time by giving written notice to the Board of Directors or to the Chairman of
the Board or to the Secretary of the corporation. Any such resignation shall
take effect at the time specified therein, or if the time be not specified, upon
receipt thereof, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. When one or more
Directors shall resign from the Board of Directors, effective at a future date,
a majority of the Directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective and
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each Director so chosen shall hold office as provided in these By-laws in the
filling of other vacancies. The stockholders of the corporation entitled to vote
upon the election of Directors may, at any time and in accordance with the
Certificate of Incorporation, remove from office any one or more Directors only
with cause upon the affirmative vote of a majority of the then outstanding
shares of capital stock entitled to vote upon the election of Directors, and his
successor or their successors shall be elected by the remaining Directors as
provided in these By-laws and the Certificate of Incorporation in the filling of
other vacancies. A Director may be removed for cause only after reasonable
notice and opportunity to be heard before the body proposing to remove him.
ARTICLE VII
Indemnification of Directors, Officers and Others
Section 1. The corporation shall indemnify, to the fullest extent
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permitted by the General Corporation Law of the State of Delaware as presently
in effect or as hereafter amended:
(a) Subject to the provisions of Section 10, 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 and whether external
or internal to the corporation (other than by action by or in the right
of the corporation) by reason of the fact that he is or was a Director
or officer of the corporation, or is or was serving at the request of
the corporation as a Director or officer of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with
such suit, action or proceeding if he acted 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 no reasonable cause to believe that his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, that the person had reasonable cause to believe that his
conduct was unlawful.
(b) Any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a Director or officer of the
corporation, or is or was serving at the request of the corporation as
a Director or officer of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably
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believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 2. The Board of Directors, in its discretion, may authorize the
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corporation to indemnify to the fullest extent permitted by the General
Corporation Law of the State of Delaware (as presently in effect or as hereafter
amended):
(a) Subject to the provisions of Section 10, any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is
or was an employee or agent of the corporation, or is or was serving 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 in
connection with such suit, action or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, that the person had reasonable cause to believe that his
conduct was unlawful.
(b) Any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was an employee or agent of the
corporation, or is or was serving 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) and amounts paid in settlement actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is
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fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 3. Any indemnification under this Article VII (unless required
---------
by law or ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
Director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 1 and 2 of this
Article VII. Such determination shall be made (i) by the Board of Directors by a
majority vote of Directors who were not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) if there are no such
Directors, or if such Directors so direct, by independent legal counsel in a
written opinion, or (iii) by the stockholders of the corporation.
Section 4. Expenses incurred by a Director or officer in defending a
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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 VII. Any advance
under this Section 4 shall be made promptly, and in any event within ninety
days, upon the written request of the person seeking the advance.
Section 5. The indemnification and advancement of expenses provided by,
---------
or granted pursuant to, the other Sections of this Article VII shall not be
deemed exclusive of any other rights to which any person, whether or not
entitled to be indemnified under this Article VII, may be entitled under any
statute, By-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. Each person who is or becomes a
Director or officer as described in Section 1 shall be deemed to have served or
to have continued to serve in such capacity in reliance upon the indemnity
provided for in this Article VII. All rights to indemnification under this
Article VII shall be deemed to be provided by a contract between the corporation
and the person who serves as a Director or officer of the corporation at any
time while these By-laws and other relevant provisions of the General
Corporation Law of the State of Delaware and other applicable law, if any, are
in effect. Any repeal or modification thereof shall not affect any rights or
obligations then existing.
Section 6. The Board of Directors may at any time and from time to time
---------
cause the corporation to purchase and maintain insurance on behalf of any person
who is or was a Director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a Director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of the General Corporation Law of the State of Delaware (as
presently in effect or hereafter amended), the Certificate of Incorporation of
the corporation or these By-laws.
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Section 7. The corporation's indemnification under Sections 1 and 2 of
---------
this Article VII of any person who is or was a Director, officer, employee or
agent of the corporation, or is or was serving, at the request of the
corporation as a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall be reduced by any
amounts such person receives as indemnification (i) under any policy of
insurance purchased and maintained on his behalf by the corporation, (ii) from
such other corporation, partnership, joint venture, trust or other enterprise,
or (iii) under any other applicable indemnification provision.
Section 8. In the discretion of the Board of Directors of the
---------
corporation, for the purposes of this Article VII, references to "the
corporation" may also include any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its Directors or officers, so that any person who is or was a Director
or officer of such constituent corporation, or is or was serving at the request
of such constituent corporation as a Director or officer of another corporation,
partnership, joint venture, trust or other enterprise, would stand in the same
position under the provisions of this Article VII with respect to the resulting
or surviving corporation as he would have with respect to such other constituent
corporation if its separate existence had continued.
Section 9. In addition to and without limiting the foregoing provisions
---------
of this Article VII and except to the extent otherwise required by law, any
person seeking indemnification under or pursuant to Section 1 of this Article
VII shall be deemed and presumed to have met the applicable standard of conduct
set forth in Section 1 unless the contrary shall be established.
Section 10.
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(a) In addition to and without limiting the foregoing provisions of
this Article VII and except to the extent otherwise required by law, (a) it
shall be a condition of the corporation's obligation to indemnify under Sections
l(a) and 2(a) of this Article VII (in addition to any other condition in these
By-laws or by law provided or imposed) that the person asserting, or proposing
to assert, the right to be indemnified, promptly after receipt of notice of
commencement of any action, suit or proceeding in respect of which a claim for
indemnification is or is to be made against the corporation, notify the
corporation of the commencement of such action, suit or proceeding, including
therewith a copy of all papers served and the name of counsel retained or to be
retained by such person in connection with such action, suit or proceeding, and
thereafter to keep the corporation timely and fully apprised of all developments
and proceedings in connection with such action, suit or proceeding or as the
corporation shall request, and (b) the fees and expenses of any counsel retained
by a person asserting, or proposing to assert, the right to be indemnified under
Section l(a) or 2(a) of this Article VII shall be at the expense of such person
unless the counsel retained shall have been approved by the corporation in
writing.
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(b) If a claim for indemnification or advancement of expenses under
this Article VII is not paid in full by the corporation within 90 days after a
written claim therefor has been received by the corporation, the claimant may at
any time thereafter bring suit against the corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expenses of prosecuting such claim.
Section 11. For purposes of this Article VII, references to "other
---------
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service by a Director or officer of the corporation which
imposes duties on, or involves services by, such person with respect to any
employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Article VII.
Section 12. To the extent that a Director, officer, agent or employee
----------
of the corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 1 or in Section 2, 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 13. The indemnification and advancement of expenses provided
----------
by, or granted pursuant to, this Article VII 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.
Section 14. If any term or provision of this Article VII or the
-----------
application thereof to any person, property or circumstance shall to any extent
be invalid or unenforceable, the remainder of this Article VII or the
application of such term or provision to persons, property or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term and provision of this Article VII shall be valid
and enforced to the fullest extent permitted by law.
ARTICLE VIII
Capital Stock
Section 1. Stock Certificates. Each stockholder shall be entitled to a
--------- ------------------
certificate or certificates representing in the aggregate the shares owned by
him and certifying the number and class thereof, which shall be in such form as
this Board of Directors shall adopt. Each certificate of stock shall be signed
by the Chairman of the Board or the President or a Vice President, and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary.
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 has ceased to be such officer, transfer agent
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or registrar before the certificate is issued, such certificate may nevertheless
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 2. Transfer of Stock. Shares of stock shall be transferable on
---------
the books of the corporation pursuant to applicable law and such rules and
regulations as the Board of Directors shall from time to time prescribe.
Section 3. Holders of Record. Prior to due presentment for registration
---------
of transfer the corporation may treat the holder of record of a share of its
stock as the complete owner thereof exclusively entitled to vote to receive
notifications and otherwise entitled to all the rights and powers of a complete
owner thereof, notwithstanding notice to the contrary.
Section 4. Transfer Agent and Registrar. The Board of Directors may at
---------
any time appoint a transfer agent or agents and/or registrar or registrars for
the transfer and/or registration of shares of stock.
Section 5. Lost, Stolen, Destroyed or Mutilated Stock Certificates. The
---------
Board of Directors may direct a new stock certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, destroyed or mutilated, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen, destroyed or mutilated. When authorizing such issue of
a new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen, destroyed or mutilated certificate or certificates or his legal
representative, to (a) advertise the same in such manner as it shall require
and/or (b) give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen, destroyed or mutilated and/or (c)
comply with any other reasonable requirements prescribed by the Board of
Directors.
ARTICLE IX
Securities of Other Corporations
Subject to any limitations that may be imposed by the Board of
Directors, the Chairman of the Board, the President or any person or persons
authorized by the Board of Directors may in the name and on behalf of the
corporation (i) act, or appoint any other person or persons (with or without
powers of substitution) to act in the name and on behalf of the corporation (as
proxy or otherwise), at any meeting of the holders of stock or other securities
of any corporation or other organization, securities of which shall be held by
this corporation, or (ii) express consent or dissent, as a holder of such
securities, to corporate or other action by such other corporation or
organization.
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ARTICLE X
Checks, Notes, Drafts and Other Instruments
Checks, notes, drafts and other instruments for the payment of money
drawn or endorsed in the name of the corporation may be signed by any officer or
officers or person or persons authorized by the Board of Directors to sign the
same. No officer or person shall sign any such instrument as aforesaid unless
authorized by the Board of Directors to do so.
ARTICLE XI
Dividends and Reserves
Section 1. Dividends. Dividends upon the capital stock of the
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corporation may, subject to any provisions of the Certificate of Incorporation,
be declared pursuant to law by the Board of Directors. Dividends may be paid in
cash, in property or in shares of the capital stock.
Section 2. Reserves. Before payment of any dividend there may be set
---------- --------
aside out of any funds of the corporation available for dividends such sum or
sums as the Board of Directors from time to time, in its absolute discretion,
thinks proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the Directors shall think conducive to the interest of
the corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
ARTICLE XII
Corporate Seal
The corporate seal shall be in such form as the Board of Directors may
from time to time prescribe and the same may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
ARTICLE XIII
Fiscal Year
The fiscal year of the corporation shall end on the 31st day of January
of each year.
ARTICLE XIV
Books and Records
The books, accounts and records of the corporation, except as may be
otherwise required by the laws of the State of Delaware, may be kept outside of
the State of Delaware, at such place or places as the Board of Directors may
from time to time appoint. Except as may otherwise be provided by law, the Board
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of Directors shall determine whether and to what extent the books, accounts,
records and documents of the corporation, or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any book, account, record or document of the corporation, except as
conferred by law or by resolution of the stockholders or Board of Directors.
ARTICLE XV
Notices
Section 1. Manner of Giving of Notice. Whenever the provisions of a
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law, the Certificate of Incorporation, the By-laws or rules of a committee
require notice to be given to any Director, officer, stockholder or member of a
committee, they shall not be construed to mean only personal notice; such notice
may be given by telegram or telecopier, or by depositing such notice in a post
office or letter box or with an overnight courier, in a postpaid, sealed
wrapper, addressed to such Director, officer, stockholder or member of a
committee at his address as the same appears in the books or records of the
corporation (unless he shall have filed with the Secretary a written request
that notice intended for him be sent to some other address, in which case it
shall be sent to the address designated in the most recent such request); and
the time when such telegram shall be transmitted or notice deposited shall be
deemed to be the time of the giving of such notice.
Section 2. Waiver of Notice. Whenever notice is required by law, the
---------- ----------------
Certificate of Incorporation, the By-laws, or as otherwise provided by law, a
written waiver thereof, signed by the person entitled to notice, shall be deemed
equivalent to notice, whether signed before or after the time required for such
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.
ARTICLE XVI
Separability
If any term or provision of the By-laws, or the application thereof to
any person or circumstance or period of time, shall to any extent be invalid or
unenforceable, the remainder of the By-laws, or the application of such term or
provision to persons or circumstances or periods of time other than those as to
which it is invalid or unenforceable, shall not be affected thereby and each
term and provision of the By-laws shall be valid and enforced to the fullest
extent permitted by law.
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ARTICLE XVII
Amendments
The By-laws may be made, altered or repealed by the stockholders in the
manner provided in the Certificate of Incorporation, or by the Board of
Directors, if such power is conferred by the Certificate of Incorporation,
except that any By-law made by the stockholders may be altered or repealed only
by the stockholders if such By-law expressly so provides.
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