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EXHIBIT 3.2
BY-LAWS
OF
MEDICHEM LIFE SCIENCES, INC.
(the "Corporation")
ARTICLE 1
STOCKHOLDERS
Section 1.1 Annual Meetings. An annual meeting of stockholders shall be
held for the election of directors at such date, time and place either within or
without the State of Delaware designated by the board of directors of the
Corporation (the "Board of Directors") from time to time. Any other business
properly brought before the meeting may be transacted at the annual meeting.
Section 1.2 Special Meetings. Special meetings of stockholders may be
called at any time by, and only by, the Board of Directors or President, to be
held at such date, time and place either within or without the State of Delaware
as is stated in the 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 must
be given, stating 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 required by law, the written notice of any meeting shall be
given not less than ten nor more than sixty days before the date of the meeting
to each stockholder entitled to vote at such meeting. If mailed, such notice
shall be deemed to be given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholder's address as it appears
on the records of the Corporation.
Section 1.4 Adjournments. Any meeting of stockholders, annual or special,
may be adjourned from time to time, to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting must be given to
each stockholder of record entitled to vote at the meeting.
Section 1.5 Quorum. At each meeting of stockholders, except where
otherwise required by law, the certificate of incorporation or these by-laws,
the holders of a majority of the outstanding shares of stock entitled to vote on
a matter at the meeting, present in person or represented by proxy, constitute a
quorum. For purposes of the foregoing, where a separate vote by class or classes
is required for any matter, the holders of a majority of the outstanding shares
of such class or classes, present in person or represented by proxy, shall
constitute a quorum to take action with respect to that vote on that matter.
Two or more classes or series of stock shall be considered a single class if the
holders of such classes or series of stock are entitled to vote
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together as a single class at the meeting. In the absence of a quorum of the
holders of any class of stock entitled to vote on a matter, the meeting of such
class may be adjourned from time to time in the manner provided by Sections 1.4
and 1.6 of these by-laws until a quorum of such class is so present or
represented. Shares of its own capital stock belonging on the record date for
the meeting 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, will neither be entitled to
vote nor be counted for quorum purposes, provided the foregoing will not limit
the right of the Corporation to vote stock, including but not limited to its own
stock, held by it in a fiduciary capacity.
Section 1.6 Voting; Proxies. Unless otherwise provided in the certificate
of incorporation, each stockholder entitled to vote at any meeting of
stockholders is 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 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 duly executed proxy will 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, regardless of
whether the interest with which it is coupled is an interest in the stock itself
or an interest in the Corporation generally. 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 another duly executed
proxy bearing a later date with a Secretary. Voting at meetings of stockholders
need not be by written ballot unless so directed by the chairman of the meeting
or the Board of Directors. Directors must be elected by a plurality of the votes
of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors. In all other matters, unless
otherwise required by law, the certificate of incorporation or these by-laws,
the affirmative vote of the holders of a majority of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
subject matter will be the act of the stockholders. Where a separate vote by
class or classes is required, the affirmative vote of the holders of a majority
(or, in the case of an election of directors, a plurality) of the shares of such
class or classes present in person or represented by proxy at the meeting shall
be the act of such class or classes, except as otherwise required by law, the
certificate of incorporation or these by-laws.
Section 1.7 Organization. Meetings of stockholders shall be presided over
by the Chairman of the Board, if any, or in the absence of a Chairman of the
Board, by the President or other person designated by the President. The
Secretary, or in the absence of the Secretary an Assistant Secretary or other
person designated by the President, shall act as secretary of the meeting. The
order of business at each such meeting shall be as determined by the chairman of
the meeting. The chairman of the meeting shall have the right and authority to
adjourn a meeting of stockholders without a vote of stockholders and to
prescribe such rules, regulations and procedures and to do all such acts and
things as are necessary or desirable for the proper conduct of the meeting and
are not inconsistent with any rules or regulations adopted by the Board of
Directors pursuant to the provisions of the certificate of incorporation,
including the establishment of procedures for the maintenance of order and
safety, limitations on the time allotted to questions or comments on the affairs
of the Corporation, restrictions on entry to such
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meeting after the time prescribed for the commencement thereof and the opening
and closing of the voting polls for each item upon which a vote is to be taken.
Section 1.8 Inspectors. Prior to any meeting of stockholders, the Board
of Directors, Chairman of the Board, President or any other officer designated
by the Board shall appoint one or more inspectors to act at such meeting and
make a written report of the meeting. If no inspector or alternate is able to
act at the 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, must take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall ascertain the
number of shares outstanding and the voting power of each, determine the shares
represented at the meeting and the validity of proxies and ballots, count all
votes and ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
certify their determination of the number of shares represented at the meeting
and their count of all votes and ballots. The inspectors may appoint or retain
other persons to assist them in the performance of their duties. The date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxy or vote, nor any revocation thereof or change thereto, may be
accepted by the inspectors after the closing of the polls. In determining the
validity and counting of proxies and ballots, the inspectors shall be limited to
an examination of the proxies, any envelopes submitted therewith, any
information provided by a stockholder who submits a proxy by telegram, cablegram
or other electronic transmission from which it can be determined that the proxy
was authorized by the stockholder, ballots and the regular books and records of
the Corporation, and they may also consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record.
Section 1.9 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, 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 must be no more than sixty nor less than ten
days before the date of such meeting. If no record date is fixed by the Board
of Directors, 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. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders will apply to any adjournment of the meeting,
provided the Board of Directors may fix a new record date for the adjourned
meeting. In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date may not
precede the date upon which the resolution fixing the record date is adopted,
and which record date must be no more than sixty days prior to the action for
which a record date is being established. If no record
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date is fixed, the record date for determining stockholders for any such purpose
will be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
Section 1.10 List of Stockholders Entitled to Vote. The Secretary will
prepare and make, 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. Such list will be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the municipality where the meeting is to be
held, which place must 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 also must be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
Section 1.11 Notice of Stockholder Business. At an annual meeting of the
stockholders, 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 complies with the notice procedures
set forth in this Section 1.11. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
of such business 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 120 calendar days
in advance of the date of the Corporation's proxy statement released to
shareowners in connection with the previous year's annual meeting of
shareowners. A stockholder's notice to the Secretary must set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and address, as they appear on the Corporation's books, of the stockholder
proposing such business, (iii) the class and number of shares of the Corporation
which are beneficially owned by the stockholder and (iv) any material interest
of the stockholder in such business. Notwithstanding anything in these by-laws
to the contrary, no business may be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 1.11. The chairman of
an annual meeting will, 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 this Section 1.11, 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.
ARTICLE 2
DIRECTORS
Section 2.1 Powers; Number; Qualifications. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors, except as may be otherwise required by law or provided in the
certificate of incorporation. The number of directors which shall constitute the
whole Board shall not be less than 7 nor more than 25. The exact number
directors of the Corporation and the number of directors in each class of
directors
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shall be fixed only by resolution of the Board of Directors from time to time.
If the holders of any class or classes of stock or series thereof are entitled
by the certificate of incorporation to elect one or more directors, the
preceding sentence shall not apply to such directors and the number of such
directors shall be as provided in the terms of such stock. Directors need not be
stockholders.
Section 2.2 Election; Term of Office; Resignation; Removal; Vacancies.
(a) Each director shall hold office until the next election of the
class or category for which such director shall have been chosen, and until his
or her successor is elected and qualified or until his or her earlier
resignation or removal. Notwithstanding the foregoing, for any director who is
an employee of the Corporation or any of its affiliates at the time of election
to the Board of Directors it is a qualification for service as a director that
such director remain so employed, so that the term of any such director
automatically will terminate upon termination of such director's employment with
the Corporation or such affiliate for any reason, unless the Board of Directors,
by majority vote, otherwise determines.
(b) Any director may resign at any time upon written notice to the
Board of Directors or to the Chairman of the Board, if any, or the President.
Such resignation shall take effect at the time specified in the notice of
resignation, and unless otherwise specified in the notice of resignation, no
acceptance of such resignation is necessary to make it effective.
(c) No director may be removed except as provided in the certificate
of incorporation.
(d) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors (other than any directors elected
in the manner described in the next sentence) or from any other cause shall be
filled by, and only by, a majority of the directors then in office, although
less than a quorum, or by the sole remaining director. Whenever the holders of
any class or classes of stock or series thereof are entitled by the certificate
of incorporation to elect one or more directors, vacancies and newly created
directorships of such class or classes or series may be filled by, and only by,
a majority of the directors elected by such class or classes or series then in
office, or by the sole remaining director so elected. Any director elected or
appointed to fill a vacancy or a newly created directorship shall hold office
until the next election of the class of directors of the director which such
director replaced or the class of directors to which such director was
appointed, and until his or her successor is elected and qualified or until his
or her earlier resignation or removal.
Section 2.3 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.
Section 2.4 Special Meetings. Special meetings of the Board of Directors
may be held at any time or place within or without the State of Delaware
whenever called by a Chairman of the Board, if any, by the President, or at the
request in writing of any six (6) directors.
Section 2.5 Notices of Board of Directors Meetings. Notice of any regular
or special meeting, unless waived, must be given by mail or facsimile or courier
to each director at his
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address as the same appears on the records of the Corporation not less than one
(1) day prior to the day on which such meeting is to be held if such notice is
by facsimile or courier, and not less than five (5) business days prior to the
day on which the meeting is to be held if such notice is by mail. If the
Secretary fails or refuses to give such notice, then the notice may be given by
the officer or any one of the directors making the call. Any such meeting may be
held at such place as the Board may fix from time to time or as may be specified
or fixed in such notice. Notice may be waived in writing by any director, either
before or after the meeting. Any meeting of the Board of Directors will be a
legal meeting without any notice having been given, if all the directors shall
be present at the meeting, and no notice of a meeting is required to be given to
any director who shall attend such meeting.
Section 2.6 Quorum and Manner of Acting. Except as otherwise provided in
these by-laws, a majority of the total number of directors constitutes a quorum
at any regular or special meeting of the Board of Directors. Except as
otherwise provided by the Delaware General Corporation Law ("DGCL"), the
certificate of incorporation or by these by-laws, the act of a majority of the
directors present at any meeting at which a quorum is present is the act of the
Board of Directors. In the absence of a quorum, a majority of the directors
present may adjourn the meeting from time to time until a quorum be had. Notice
of any adjourned meeting need not be given.
Section 2.7 Participation in Meetings by Conference Telephone Permitted.
Members of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors or of such
committee, as the case may be, 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 2.8 Organization. Meetings of the Board of Directors will be
presided over by a Chairman of the Board, if any, or in the absence of a
Chairman of the Board by the President, or in the absence of the President, by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in the absence of the Secretary the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.9 Committees of Directors. Any duly constituted and authorized
committee of the Board of Directors may exercise such powers as have been
delegated to it by the Board of Directors, without a meeting by the unanimous
execution of an instrument in writing. The Board of Directors may designate one
or more committees, each committee to consist of two or more of the directors of
the Corporation which, to the extent provided by resolution of the Board of
Directors, shall have and may exercise the powers of the Board of Directors in
the management of the business and affairs of the Corporation; but no such
committee shall have the power or authority in reference to the following
matters: (a) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the DGCL to be submitted to stockholders
for approval or (b) adopting, amending or repealing any by-laws of the
Corporation. Such committees shall have such name or names as may be determined
from time to time by resolution adopted by the Board of Directors and, when
required by the Board of Directors, shall keep regular minutes of their
proceedings and report the same to the Board of Directors. The Board of
Directors may appoint persons who are not directors to serve on Board
committees,
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provided that to the extent any such committee exercises powers of the Board of
Directors that have been specifically delegated to it, such committee shall act
solely by vote of members of the committee who are also members of the Board of
Directors.
Section 2.10 Compensation of Directors. Directors who are employees shall
not receive any stated salary for their services as directors, but, pursuant to
normal corporate expense reimbursement policies, shall receive reimbursement for
expenses of attendance at such meetings; provided that nothing herein contained
may be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefore.
ARTICLE 3
OFFICERS
Section 3.1 Officers Designated. The officers of the Corporation shall be
elected by the Board of Directors at its annual meeting or any special meeting.
They may include a Chairman of the Board and shall include a President and Chief
Executive Officer, an Executive Vice President, a Vice President of Financial
Operations, a Secretary, and such other Vice Presidents and other officers as
the Board of Directors may determine. One person may hold any two of said
offices except the offices of President and Secretary.
Section 3.2 Tenure of Office. The officers of the Corporation will hold
office until the next annual meeting of the Board of Directors and until their
respective successors are chosen and qualified, except (a) that the term of
office of any officer who is an employee of the Corporation automatically
terminates upon termination of such officer's employment by the Corporation for
any reason and (b) in case of the officer's prior resignation, death or removal.
The Board of Directors also may remove any officer at any time with or without
cause by the vote of a majority of the directors in office at the time.
Subordinate officers appointed by the President in accordance with Section 3.4
may be removed by the President.
Section 3.3 Powers and Duties of Officers. The officers of the
Corporation will have such powers and duties in the management of the
Corporation as may be prescribed by the Board of Directors or delegated by the
President and, to the extent not so provided, as generally pertain to their
respective offices, subject to the control of the Board of Directors.
Section 3.4 Subordinate Officers, etc. The President of the Corporation
may appoint such Assistant Vice Presidents, Assistant Secretaries, Assistant
Treasurers, or other officers and such agents as the President may determine, to
hold office for such period, and with such authority and to perform such duties
as the President may from time to time determine.
Section 3.5 Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or the Secretary of
the Corporation. Any such resignation will take effect at the time specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 3.6 Vacancies. A vacancy in the office of President or Secretary
for any reason must be filled. A vacancy in any other office may be filled.
Any vacancy which is filled
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will be filled for the unexpired portion of the term in the same manner in which
an officer to fill said office may be chosen pursuant to Sections 3.1, 3.2 and
3.4.
ARTICLE 4
SHARES OF STOCK
Section 4.1 Certificates.
(a) Shares of stock of the Corporation shall be represented by
certificates.
(b) The Board of Directors of the Corporation may provide by
resolution or resolutions from time to time that some or all of any or all
classes or series of its stock shall be uncertificated shares, provided any such
resolution shall not apply to any such shares represented by a certificate
previously issued until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution or resolutions by the Board of
Directors of the Corporation, every holder of stock represented by certificates,
and upon request every holder of uncertificated shares, shall be entitled to
have a certificate signed by or in the name of the Corporation by a Chairman of
the Board or the President, and by the Treasurer, Secretary or Assistant
Secretary, representing the number of shares of stock in the Corporation owned
by such holder. If such certificate is manually signed by one officer or
manually countersigned by a transfer agent or by a registrar, any other
signature on the certificate may be a facsimile.
(c) In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate ceases 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 such person were such
officer, transfer agent or registrar at the date of issue.
(d) Certificates representing shares of stock of the Corporation may
bear such legends regarding restrictions on transfer or other matters as any
officer or officers of the Corporation may determine to be appropriate and
lawful.
(e) If the Corporation is authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications or restrictions of
such preferences and/or rights must be set forth in full or summarized on the
face or back of the certificate which the Corporation issues to represent such
class or series of stock, provided that, except as otherwise required by law, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the Corporation issues to represent such class or
series of stock a statement that the Corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of such class or
series of stock and the qualifications, limitations or restrictions of such
preferences and/or rights.
(f) Within a reasonable time after the issuance or transfer of
uncertificated shares of any class or series of stock, the Corporation will send
to the registered owner of such shares a written notice containing the
information required by law to be set forth or stated on
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certificates representing shares of such class or series or a statement that the
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of such class or series and the qualifications, limitations or
restrictions of such preferences and/or rights.
(g) Except as otherwise expressly provided by law, the rights and
obligations of the holders of uncertificated shares and the rights and
obligations of the holders of certificates representing stock of the same class
and series shall be identical.
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 previously issued by it, alleged to have been lost, stolen or
destroyed. The Corporation may require the owner of the lost, stolen or
destroyed certificate, or such owner's 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.
ARTICLE 5
MISCELLANEOUS PROVISIONS
Section 5.1 Fiscal Year. The fiscal year of the Corporation will be
determined by the Board of Directors.
Section 5.2 Waiver of Notice of Meetings of Stockholders, Directors and
Committees. Whenever notice is required to be given by law or under any
provision of the certificate of incorporation or these by-laws, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated therein, is deemed equivalent to notice. Attendance of a person at
a meeting constitutes 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
unless so required by the certificate of incorporation or these by-laws.
Section 5.3 Facsimiles. Any copy, facsimile telecommunication or other
reliable reproduction of a writing, transmission or signature may be substituted
or used in lieu of the original writing, transmission or signature for any and
all purposes for which the original writing, transmission or signature could be
used, provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing, transmission or
signature, as the case may be.
Section 5.4 Books and Records. The books of the Corporation may be kept
(subject to any provision contained in the DGCL) within or without the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors.
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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. The Corporation shall so convert any records so kept
upon the request of any person entitled to inspect the same.
Section 5.6 Depositories. The Board of Directors, the Chairman of the
Board, if any, the President, and such other officers as may be delegated
authority by the Board of Directors or one of the foregoing officers, and each
of them, may designate the banks, trust companies, or other depositories in
which shall be deposited from time to time, the money or securities of the
Corporation. In the case of a designation by the aforementioned officers, any
such designation shall require the approval of two of such officers, one of whom
shall be the Treasurer or the Vice President and Chief Financial Officer.
Section 5.7 Checks, Drafts, Notes, etc. All checks, drafts or other
orders for the payment of money and all notes or other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or
officers or agent or agents as from time to time is designated by the Board of
Directors or by any two of the Chairman of the Board, if any, the President, and
the Executive Vice President or Chief Financial Officer, if any, or one of the
foregoing officers and another officer elected by the Board of Directors.
Section 5.8 Contracts, etc., How Executed. The Board of Directors may
authorize any officer, agent or agents, to enter into any contract or execute
and deliver any instrument in the name and on behalf of the Corporation, and
such authority may be general or confined to specific instances.
Section 5.9 Stock in Other Corporations. Any shares of stock in any other
corporation which may from time to time be held by the Corporation may be
represented and voted at any meeting of stockholders of such other corporation
by the President, the Treasurer or the Secretary of the Corporation or by any
other person or persons thereunto authorized by the Board of Directors or
designated by the President, or by any proxy designated by written instrument of
appointment executed in the name of this Corporation by its President or by such
officers as may be designated by him and attested by the Secretary or Assistant
Secretary.
Section 5.10 Indemnification.
(a) Each person who was or is a party or is threatened to be made a
party to or is involved in any action, suit or proceeding or alternative dispute
resolution procedure, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was a director or officer serving at the request of
the Corporation as a director, manager, officer, partner, trustee, employee or
agent of another corporation or of a partnership, limited liability company,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the laws of the State of
Delaware as the same now or may hereafter exist (but, in the case of any change,
only to the extent that such
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change authorizes the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such change) against all
costs, charges, expenses, liabilities and losses (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director or officer and shall inure to the benefit of his or her heirs,
executors and administrators. Until such time as there has been a final judgment
to the contrary, a person shall be presumed to be entitled to be indemnified
under this Section 5.10(a). The right to indemnification conferred in this
Section shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition upon receipt by the Corporation of an undertaking, by or
on behalf of such director or officer, to repay all amounts so advanced if it
shall ultimately be determined that the director or officer is not entitled to
be indemnified under this Section or otherwise. The Corporation may, by action
of its Board of Directors, provide indemnification to employees and agents of
the Corporation with the same scope and effect as the foregoing indemnification
of directors and officers.
(b) If a claim under subsection (a) of this Section is not paid in
full by the Corporation within thirty days after a written claim 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 also be entitled to be paid
the expense of prosecuting such claim. It shall be a defense to any action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking has been tendered to the Corporation) that the claimant has failed
to meet a standard of conduct which makes it permissible to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is permissible in the circumstances because he or she has met such
standard of conduct, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) that the
claimant has not met such standard of conduct, nor the termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall be a defense to the action or create a
presumption that the claimant has failed to meet the required standard of
conduct.
(c) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
Section shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, by-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any director, manager, officer, partner, trustee, employee or agent
of the Corporation or another corporation, partnership, limited liability
company, joint venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under Delaware law.
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(e) To the extent that any director, officer, employee or agent of the
Corporation is by reason of such position, or a position with another entity at
the request of the Corporation, a witness in any proceeding, he or she shall be
indemnified against all costs and expenses actually and reasonably incurred by
him or her or on his or her behalf in connection therewith.
(f) Notwithstanding any amendment of this section which may have been
approved by the stockholders, this section may be added to, altered, amended or
repealed pursuant to Section 5.11 of these by-laws.
(g) Any amendment, repeal or modification of any provision of this
Section by the stockholders or the directors of the Corporation shall not
adversely affect any right or protection of a director or officer of the
Corporation existing at the time of such amendment, repeal or modification.
Section 5.11 Amendment of By-Laws. These by-laws may be amended, modified
or repealed, and new by-laws may be adopted at any time, by the Board of
Directors. Stockholders of the Corporation may adopt additional by-laws and
amend, modify or repeal any by-law whether or not adopted by them, but only in
accordance with Article 6 of the certificate of incorporation.
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