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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q/A
AMENDMENT NO. 1 TO QUARTERLY REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended March 31, 1995 Commission file no. 0-14587
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GENETICS INSTITUTE, INC.
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(Exact name of registrant as specified in its charter)
Delaware 04-2718435
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
87 CambridgePark Drive, Cambridge, MA 02140
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 876-1170
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None
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(Former name, former address and
former fiscal year if changed since last report)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports) and (2) has been subject to such filing requirements
for the past 90 days. Yes X No .
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26,662,473 shares of Common Stock (including 10,661,732 shares
represented by Depositary Shares) were outstanding on May 4, 1995.
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Part II. OTHER INFORMATION.
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Item 6. Exhibits and Reports on Form 8-K.
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(a) The Exhibits filed as a part of this Form 10-Q are
listed on the Exhibit Index immediately preceding such
Exhibits, which Exhibit Index is incorporated herein by
reference.
(b) No reports were filed on Form 8-K during the quarter
ended March 31, 1995.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
GENETICS INSTITUTE, INC.
Date: May 24, 1995 By: /s/ Garen G. Bohlin
----------------------------
Garen G. Bohlin
Executive Vice President and
Chief Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer)
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE NUMBER
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* 3.2 Restated By-Laws of the Company
+ 10.1 Amended and Restated License Agreement
between Genetics Institute, Inc. and
Sofamor Danek Properties, Inc. dated
as of February 15, 1995
+ 11 Computation of Earnings Per Share
+ 27 Financial Data Schedules (EDGAR)
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* Filed herewith.
+ Filed as an exhibit to the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1995
(File No. 0-14587) on May 12, 1995 and incorporated herein by
reference.
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EXHIBIT 3.2
BY-LAWS
OF
GENETICS INSTITUTE, INC.
------------------------
ARTICLE I.
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Certificate of Incorporation
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These By-Laws, the powers of the Corporation and of its
directors and stockholders, and all matters concerning the conduct
and regulation of the business of the Corporation shall be subject
to such provisions in regard thereto as are set forth in the
Certificate of Incorporation filed pursuant to the General
Corporation Law of Delaware which is hereby made a part of these
By-Laws.
The term "Certificate of Incorporation" in these By-Laws,
unless the context requires otherwise, includes not only the
original Certificate of Incorporation filed to create the
Corporation, but also other certificates, agreements of merger or
consolidation, plans of reorganization, or other instruments,
howsoever designated, filed pursuant to the General Corporation
Law of Delaware which have the effect of amending or supplementing
in some respect the Corporation's original Certificate of
Incorporation.
ARTICLE II.
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Annual Meeting
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An annual meeting of stockholders shall be held for the
election of directors and for the transaction of any other
business for the transaction of which the meeting shall have been
properly convened on the third Thursday in April in each year, or
on such other date as shall be determined by the Board of
Directors, at such place, within or without the State of Delaware,
and at such time as shall be fixed by the Board of Directors and
specified in the notice of the meeting, if such date is not a
legal holiday and if a legal holiday, then at the same hour on the
next succeeding day not a legal holiday. Any other proper
business may be transacted at the annual meeting. If the annual
meeting for election of directors shall not be held on the date
designated therefor, the directors shall cause the meeting to be
held as soon thereafter as convenient.
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ARTICLE III.
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Special Meetings of Stockholders
--------------------------------
Special meetings of the stockholders may be held either
within or without the State of Delaware, at such time and place
and for such purposes as shall be specified in a call for such
meeting made by a writing filed with the Secretary signed by a
majority of the entire Board of Directors or the President.
ARTICLE IV.
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Notice of Stockholders' Meetings
--------------------------------
Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be
given which shall state the place, date and hour of the meeting
and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, which notice shall be given not less
than ten nor more than fifty days before the date of the meeting,
except where longer notice is required by law, to each stockholder
entitled to vote at such meeting, by leaving such notice with him
or by mailing it, postage prepaid, directed to him at his address
as it appears upon the records of the Corporation. In case of the
death, absence, incapacity or refusal of the Secretary, such
notice may be given by a person designated either by the Secretary
or by the person or persons calling the meeting or by the Board of
Directors. When a meeting is adjourned to another time or place,
notice need not be given at the 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 shall be
given to each stockholder of record entitled to vote at the
meeting.
An affidavit of the Secretary or an Assistant Secretary or
the transfer agent of the Corporation that the notice has been
given shall, in the absence of fraud, be prima facie evidence the
facts stated therein.
ARTICLE V.
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Quorum of Stockholders; Stockholder List
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At any meeting of the stockholders, a majority of all such
issued and outstanding and entitled to vote upon a question to be
considered at the meeting shall constitute a quorum for the
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consideration of such question when represented at such meeting by
the holders thereof in person or by proxy, but a lesser interest
may adjourn any meeting from time to time, and the meeting may be
held as adjourned without further notice. When a quorum is
present at any meeting a majority of the stock so represented
thereat and entitled to vote shall, except where a larger vote is
required by law, the Certificate of Incorporation or these By-
Laws, decide any question brought before such meeting.
The Secretary or other officer having charge of the stock
ledger shall 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
shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours for
a period of at least ten days prior to the meeting, either at a
place within the city or town where the meeting is to be held,
which place shall have been specified in the notice of the
meeting, or, if not so specified, at the place where the meeting
is to be held. Said list shall also be produced and kept at the
time and place of the meeting during the whole time thereof and
may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list of stockholders
required by this Article or the books of the Corporation, or the
stockholders entitled to vote in person or by proxy at any meeting
of stockholders.
Except as otherwise provided by law, at any annual or special
meeting of stockholders only such business shall be conducted as
shall have been properly brought before the meeting. In order to
be properly brought before the meeting, such business must have
been either (A) specified in the written notice of the meeting (or
any supplement thereto) given to stockholders of record on the
record date for such meeting by or at the direction of the Board
of Directors, (B) brought before the meeting at the direction of
the Board of Directors or the chairman of the meeting or
(C) specified in a written notice given by or on behalf of a
stockholder of record on the record date for such meeting entitled
to vote thereat or a duly authorized proxy for such stockholder,
in accordance with all of the following requirements. A notice
referred to in clause (C) hereof must be delivered personally to
or mailed to and received at the principal executive office of the
Corporation, addressed to the attention of the Secretary, not more
than ten (10) days after the date of the initial notice referred
to in clause (A) hereof, in the case of business to be brought
before a special meeting of stockholders, and not less than thirty
(30) days prior to the first anniversary date of the initial
notice referred to in clause (A) hereof to the previous year's
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annual meeting, in the case of business to be brought before an
annual meeting of stockholders, provided, however, that such
notice shall not be required to be given more than fifty (50) days
prior to an annual meeting of stockholders. Such notice referred
to in clause (C) hereof shall set forth (i) a full description of
each such item of business proposed to be brought before the
meeting, (ii) the name and address of the person proposing to
bring such business before the meeting, (iii) the class and number
of shares held of record, held beneficially and represented by
proxy by such person as of the record date for the meeting (if
such date has then been made publicly available) and as of the
date of such notice, (iv) if any item of such business involves a
nomination for director, all information regarding each such
nominee that would be required to be set forth in a definitive
proxy statement filed with the Securities and Exchange Commission
pursuant to Section 14 of the Securities Exchange Act of 1934, as
amended, or any successor thereto, and the written consent of each
such nominee to serve if elected, and (v) all other information
that would be required to be filed with the Securities and
Exchange Commission if, with respect to the business proposed to
be brought before the meeting, the person proposing such business
was a participant in a solicitation subject to Section 14 of the
Securities Exchange Act of 1934, as amended, or any successor
thereto. No business shall be brought before any meeting of
stockholders of the Corporation otherwise than as provided in this
paragraph of this Article V.
Notwithstanding the foregoing provisions, the Board of
Directors shall not be obligated to include information as to any
nominee for director in any proxy statement or other communication
sent to stockholders.
The chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that any proposed item of
business was not brought before the meeting in accordance with the
foregoing procedure and, if he should so determine, he shall so
declare to the meeting and the defective item of business shall be
disregarded.
In advance of any meeting of stockholders, the Board of
Directors may appoint judges of election, who need not be
stockholders, to act at such meeting or any adjournment thereof.
If judges of election be not so appointed, the chairman of any
such meeting may and, on the request of any stockholder or his
proxy shall, make such appointment at the meeting. The number of
judges shall be one or three as shall be determined by the Board
of Directors, except that, if appointed at the meeting on the
request of one or more stockholders or proxies, the holders of a
majority of the shares of the Corporation present and entitled to
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vote shall determine whether one or three judges are to be
appointed. No person who is a candidate for office shall act as a
judge.
In case any person appointed as a judge fails to appear or
fails or refuses to act, the vacancy may be filled by appointment
made by the Board of Directors in advance of the convening of the
meeting or at the meeting by the officer or person acting as
chairman of the meeting.
The judges of election shall determine the number of shares
outstanding and the voting power of each, the shares represented
at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, receive votes or ballots, hear and
determine all challenges and questions in any way arising in
connection with the right to vote, count and tabulate all votes,
determine the result, and do such other acts as may be proper to
conduct the election or vote with fairness to all stockholders.
The judges of election shall perform their duties impartially, in
good faith, to the best of their ability, and as expeditiously as
is practical. If there be three judges of election, the decision,
act or certificate of a majority shall be effective in all
respects as the decision, act or certificate of all.
On request of the chairman of the meeting or of any
stockholder or his proxy, the judges shall make a report in
writing of any challenge or question or matter determined by them,
and execute a certificate of any fact found by them. Any report
or certificate made by them shall be prima facie evidence of the
facts stated therein.
ARTICLE VI.
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Proxies and Voting
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Except as otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote for each share of the capital
stock held by such stockholder. Each stockholder entitled to vote
at a meeting of stockholders or to express consent or dissent to
corporate action in writing without a meeting may authorize
another person or persons to act for him by proxy but (except as
otherwise expressly permitted by law) no proxy shall be voted or
acted upon after three years from its date, unless the proxy
provides for a longer period so long as it is coupled with an
interest sufficient in law to support an irrevocable power.
Stockholders of the Corporation may not take any action by
written consent in lieu of a meeting. Notwithstanding any other
provision of law, the Certificate of Incorporation or these By-
Laws, and notwithstanding the fact that a lesser percentage may be
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specified by law, the affirmative vote of the holders of at least
eighty percent (80%) of the votes which all the stockholders would
be entitled to cast at any annual election of directors or class
of directors shall be required to amend or repeal, or to adopt any
provision inconsistent with, this paragraph of this Article VI.
ARTICLE VII.
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Stockholders' Record Date
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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 change,
conversion or exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a
record date not less than ten days before the date of such meeting
nor more than sixty days prior to any other action.
If no record date is fixed:
(1) 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.
(2) The record date for determining stockholders for
any other purpose shall be at the close of business on the day
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.
ARTICLE VIII.
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Board of Directors
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This Article is inserted for the management of the business
and for the conduct of the affairs of the Corporation, and it is
expressly provided that it is intended to be in furtherance and
not in limitation or exclusion of the powers conferred by the
statutes of the State of Delaware.
SECTION 1. NUMBER OF DIRECTORS. Subject to the rights
of the holders of Series Preferred Stock of the Corporation then
outstanding to elect additional directors under specified
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circumstances, the number of directors of the Corporation shall
not be less than three nor more than 13. The exact number of
directors within the minimum and maximum limitations specified in
the preceding sentence shall be fixed from time to time pursuant
to a resolution adopted by a majority of the Board of Directors.
SECTION 2. CLASSES OF DIRECTORS. The Board of
Directors shall be and is divided into three classes: Class I,
Class II and Class III. No one class shall have more than one
director more than any other class. If a fraction is contained in
the quotient arrived at by dividing the authorized number of
directors by three, then, if such fraction is one-third, the extra
director shall be a member of Class III and, if such fraction is
two-thirds, one of the extra directors shall be a member of Class
III and one of the extra directors shall be a member of Class II,
unless otherwise provided for from time to time by resolution
adopted by a majority of the Board of Directors.
SECTION 3. ELECTION OF DIRECTORS. Elections of
directors need not be by written ballot except as and to the
extent otherwise provided in these By-Laws.
SECTION 4. TERMS OF OFFICE. Each director shall serve
for a term ending on the date of the third annual meeting
following the annual meeting at which such director was elected;
provided, however, that each initial director in Class I shall
serve for a term ending on the date of the annual meeting next
following the end of the Corporation's fiscal year 1987; each
initial director in Class II shall serve for a term ending on the
date of the annual meeting next following the end of the
Corporation's fiscal year 1988; and each initial director in Class
III shall serve for a term ending on the date of the annual
meeting next following the end of the Corporation's fiscal year
1989.
SECTION 5. ALLOCATION OF DIRECTORS AMONG CLASSES IN THE
EVENT OF INCREASES OR DECREASES IN THE NUMBER OF DIRECTORS. In
the event of any increase or decrease in the authorized number of
directors, (i) each director then serving as such shall
nevertheless continue as director of the class of which he is a
member until the expiration of his current term or his prior
death, retirement or resignation and (ii) the newly created or
eliminated directorships resulting from such increase or decrease
shall be apportioned by the Board of Directors among the three
classes of directors so as to ensure that no one class has more
than one director more than any other class. To the extent
possible, consistent with the foregoing rule, any newly created
directorships shall be added to those classes whose terms of
office are to expire at the latest dates following such
allocation, and any newly eliminated directorships shall be
subtracted from those classes whose terms of office are to expire
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at the earliest dates following such allocation, unless otherwise
provided for from time to time by resolution adopted by a majority
of the directors then in office, although less than a quorum.
SECTION 6. QUORUM; ACTION OF MEETING. A majority of
the directors at any time in office shall constitute a quorum for
the transaction of business and, if at any meeting of the Board of
Directors there shall be less than such a quorum, a majority of
those present may adjourn the meeting from time to time. Every
act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall
be regarded as the act of the Board of Directors unless a greater
number be required by law, the Certificate of Incorporation or
these By-Laws.
SECTION 7. REMOVAL. Subject to the rights of the
holders of any Series Preferred Stock then outstanding, any
director or the entire Board of Directors may be removed from
office at any time by the affirmative vote of the holders of at
least eighty percent (80%) of the voting power of all the shares
of the Corporation entitled to vote generally in the election of
directors voting together as a single class.
SECTION 8. TENURE. Notwithstanding any provisions to
the contrary contained herein, each director shall serve until a
successor is elected and qualified or until his death, resignation
or removal.
SECTION 9. VACANCIES. Subject to the rights of the
holders of any Series Preferred Stock then outstanding, any
vacancies in the Board of Directors occurring for any reason and
any newly created directorships resulting from any increase in the
number of directors may be filled only by the Board of Directors
acting by the affirmative vote of at least a majority of the
directors then in office, although less than a quorum. Each
director so chosen shall hold office until the next election of
the class for which such director shall have been chosen and until
his successor shall be elected and qualified or until his earlier
death, resignation or removal.
SECTION 10. STOCKHOLDER NOMINATIONS AND INTRODUCTION OF
BUSINESS, ETC. Advance notice of stockholder nominations for
election of directors and other business to be brought by
stockholders before a meeting of Stockholders shall be given in
the manner provided in these By-Laws and the appointment of judges
or election shall be made in the manner provided in these By-Laws.
SECTION 11. AMENDMENTS TO ARTICLE. Notwithstanding any
other provisions of law, the Certificate of Incorporation or these
By-Laws, and notwithstanding the fact that a lesser percentage may
be specified by law, the affirmative vote of the holders of at
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least eighty percent (80%) of the votes which all the Stockholders
would be entitled to cast at any annual election of directors or
class of directors shall be required to amend or repeal, or to
adopt any provision inconsistent with, this Article VIII.
ARTICLE IX.
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Committees
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The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as
alternate members of any committee who may replace any absent or
disqualified member at any meeting of the committee and may define
the number and qualifications which shall constitute a quorum of
such committee. Except as otherwise limited by law, any such
committee shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it. In the absence or
disqualification of a member of committee, the member or members
thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
ARTICLE X.
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Meetings of the Board of Directors and of Committees
----------------------------------------------------
Regular meetings of the Board of Directors may be held
without call or formal notice at such places either within or
without the State of Delaware and at such times as the Board may
by vote from time to time determine.
Special meetings of the Board of Directors may be held at any
place either within or without the State of Delaware at any time
when called by the President, Treasurer, Secretary or two or more
directors, reasonable notice of the time and place thereof being
given to each director. A waiver of such notice in writing,
signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed
equivalent to such notice. In any case it shall be deemed
sufficient notice to a director to send notice by mail at least
seventy-two hours, or to deliver personally or to send notice by
telegram at least twenty-four hours, before the meeting, addressed
to him at his usual place or last known business or residence
address.
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Unless otherwise restricted by the Certificate of
Incorporation or by other provisions of these By-Laws, (a) 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 or of such
committee, as the case may be, consent thereto in writing and such
writing or writings are filed with the minutes of proceedings of
the Board or committee, and (b) members of the Board of Directors
or of any committee designated by the Board may participate in a
meeting thereof by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation shall constitute presence in person at such meeting.
ARTICLE XI.
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Quorum of the Board of Directors
--------------------------------
Except as otherwise expressly provided in the Certificate of
Incorporation or in these By-Laws, a majority of the total number
of directors at the time in office shall constitute a quorum for
the transaction of business, but a lesser number may adjourn any
meeting from time to time. Except as otherwise so expressly
provided, the vote of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board
of Directors, provided, that the affirmative vote in good faith of
a majority of the disinterested directors, even though the
disinterested directors shall be fewer than a quorum, shall be
sufficient to authorize a contract or transaction in which one or
more directors have an interest if the material facts as to such
interest and the relation of the interested directors to the
contract or transaction have been disclosed or are known to the
directors.
ARTICLE XII.
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Waiver of Notice of Meetings
----------------------------
Whenever notice is required to be given under any provision
of law, 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, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular
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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.
ARTICLE XIII.
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Officers and Agents
-------------------
The Corporation shall have a President, Secretary and
Treasurer, each of whom shall be chosen by the Board of Directors
and shall hold his office until his successor has been chosen and
qualified or until his earlier resignation or removal. The
Corporation may have such other officers and agents as are
desired, each of whom shall be chosen by the Board of Directors
and shall hold his office for such term and have such authority
and duties as shall be determined by the Board of Directors. The
Board of Directors may secure the fidelity of any or all of the
Corporation's officers or agents by bond or otherwise. Any number
of offices may be held by the same person. Each officer shall,
subject to these By-Laws, have in addition to the duties and
powers herein set forth, such duties and powers as the Board of
Directors shall from time to time designate. In all cases where
the duties of any officer, agent or employee are not specifically
prescribed by these By-Laws, or by the Board of Directors, such
officer, agent or employee shall obey the orders and instructions
of the President. Any officer may resign at any time upon written
notice to the Corporation
ARTICLE XIV.
------------
President
---------
The President shall, subject to the direction and under the
supervision of the Board of Directors, be the Chief Executive
Officer of the Corporation and shall have general supervision over
its officers, agents and employees. Except as otherwise voted by
the Board he shall preside at all meetings of the stockholders and
of the Board of Directors at which he is present. The President
shall have custody of the Treasurer's bond, if any.
ARTICLE XV.
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Secretary
---------
The Secretary shall record all the proceedings of the
meetings of the stockholders and directors in a book, which shall
be the property of the Corporation, to be kept for that purpose,
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and perform such other duties as shall be assigned to him by the
Board of Directors. In the absence of the Secretary from any such
meeting a temporary Secretary shall be chosen, who shall record
the proceedings of such meeting in the aforesaid book.
ARTICLE XVI.
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Treasurer
---------
The Treasurer shall, subject to the direction and under the
supervision of the Board of Directors, have the care and custody
of the funds, securities and similar valuable effects of the
Corporation, except his own bond, and he shall, except as the
Board of Directors shall generally or in particular cases
authorize the endorsement thereof in some other manner, have power
to endorse for deposit or collection all notes, checks, drafts and
other obligations for the payment of money to the Corporation or
its order. He shall keep, or cause to be kept, accurate books of
account, which shall be the property of the Corporation
ARTICLE XVII.
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Removals
--------
The Board of Directors may, at any meeting called for the
purpose, by vote of a majority of their entire number remove from
office any officer of the Corporation or any member of any
committee appointed by the Board of Directors or by any committee
appointed by the Board of Directors or by any officer or agent of
the Corporation.
ARTICLE XVIII.
--------------
Certificates of Stock
---------------------
Every holder of stock in the Corporation shall be entitled to
have a certificate signed by, or in the name of, the Corporation,
by the President or a Vice President and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary,
stating the number of shares owned by him in the Corporation. If
such certificate is countersigned (1) by a transfer agent other
than the Corporation or its employee, or (2) by a registrar other
than the Corporation or its employee, any other signatures on the
certificate may be facsimile. In case any officer who has signed
or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer before such certificate is
issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of issue.
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If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the
designations, preferences and relative participating, optional or
other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized
on the face or back of the certificates which the Corporation
shall issue to represent such class or series of stock, a
statement that the Corporation will furnish, without charge to
each stockholder who so requests, the designations, preferences
and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Any restriction imposed upon the transfer of shares or
registration of transfer of shares shall be noted conspicuously on
the certificate representing the shares subject to such
restriction.
ARTICLE XIX.
------------
Loss of Certificate
-------------------
The Corporation may issue a new certificate of stock in place
of any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the directors may require the owner
of the lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate in its place
and upon such other terms or without any such bond which the board
of directors shall prescribe.
ARTICLE XX.
-----------
Seal
----
The corporate seal shall, subject to alteration by the Board
of Directors, consist of a flat-faced circular die with the word
"Delaware" together with the name of the Corporation and the year
of its organization cut or engraved thereon. The corporate seal
may be used by causing it or a facsimile thereof to be impressed
or affixed or otherwise reproduced.
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ARTICLE XXI.
------------
Execution of Papers
-------------------
Except as otherwise provided in these By-Laws or as the Board
of Directors may generally or in particular cases authorize the
execution thereof in some other manner, all deeds, leases,
transfers, contracts, bonds, notes, checks, drafts and other
obligations made, accepted or endorsed by the Corporation, shall
be signed by the President or by the Treasurer.
ARTICLE XXII.
-------------
SECTION 1. ACTIONS, SUITS OR PROCEEDINGS OTHER THAN BY OR IN
THE RIGHT OF THE CORPORATION. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was or has agreed
to become a director, officer or employee of the Corporation, or
is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or trustee of another
corporation, partnership, joint venture, trust or other enterprise
(all such persons being referred to hereafter as an "Indemnitee"),
or by reason of any action alleged to have been taken or omitted
in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of NOLO
CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in, or not opposed to,
the best interests of the Corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful. Notwithstanding anything to the
contrary in this Article XXII, except as set forth in Section 5 of
this Article XXII, the Corporation shall not indemnify an
Indemnitee seeking indemnification in connection with a proceeding
(or part thereof) initiated by the Indemnitee unless the
initiation thereof was approved by the Board of Directors of the
Corporation.
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<PAGE> 15
SECTION 2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE
CORPORATION. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of
the fact that he is or was or has agreed to become a director,
officer or employee of the Corporation or by reason of any action
alleged to have been taken or omitted in such capacity, against
costs, charges and expenses (including attorneys' fees) actually
and reasonably incurred by in or on his behalf in connection with
the defense or settlement of such action or suit and any appeal
therefrom, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, 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 Delaware or
the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of such liability
but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs,
charges and expenses which the Court of Chancery or such other
court shall deem proper.
SECTION 3. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES
OF SUCCESSFUL PARTY. Notwithstanding the other provisions of this
Article XXII, to the extent that an Indemnitee has been
successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice or the
settlement of an action without admission of liability, in defense
of any action, suit or proceeding referred to in Sections 1 and 2
of this Article XXII, or in defense of any claim, issue or matter
therein, or on appeal from any such action, suit or proceeding, he
shall be indemnified against all costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by
him or on his behalf in connection therewith.
SECTION 4. NOTIFICATION AND DEFENSE OF CLAIM. As a
condition precedent to his right to be indemnified, the Indemnitee
must give to the Corporation notice in writing as soon as
practicable of any action, suit, proceeding or investigation
involving him for which indemnity will or could be sought. With
respect to an action, suit, proceeding or investigation of which
the Corporation is so notified, the Corporation will be entitled
to participate therein at its own expense and/or to assume the
defense thereof at its own expense, with legal counsel reasonably
acceptable to such Indemnitee. After notice from the Corporation
to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or
other expenses subsequently incurred by the Indemnitee in
connection with such claim, other than as provided below in this
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<PAGE> 16
Section. The Indemnitee shall have the right to employ his own
counsel in connection with such claim, but the fees and expenses
of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the
Indemnitee unless (i) the employment of counsel by the Indemnitee
has been authorized by the Corporation, (ii) counsel to the
Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position on any significant issue between
the Corporation and the Indemnitee in the conduct of the defense
of such action or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel for the Indemnitee
shall be at the expense of the Corporation, except as otherwise
expressly provided by this Article XXII. The Corporation shall
not be entitled to assume the defense of any claim brought by or
on behalf of the Corporation or as to which counsel for the
Indemnitee shall have reasonably made the conclusion provided for
in clause (ii) above.
SECTION 5. ADVANCES OF COSTS, CHARGES AND EXPENSES. In the
event that the Corporation does not assume the defense pursuant to
Section 4 of this Article XXII of any action, suit, proceeding or
investigation about which the Corporation receives notice under
this Article XXII, any costs, charges and expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or
criminal action, suit, proceeding or investigation or any appeal
therefrom shall be paid by the Corporation in advance of the final
disposition of such matter; provided, however, that the payment of
such costs, charges and expenses incurred by an Indemnitee in
advance of the final disposition of such matter shall be made only
upon receipt of an undertaking by or on behalf of the Indemnitee
to repay all amounts so advanced in the event that it shall
ultimately be determined that such Indemnitee is not entitled to
be indemnified by the Corporation as authorized in this Article
XXII.
SECTION 6. PROCEDURE FOR INDEMNIFICATION. Any
indemnification or advancement of expenses pursuant to Section 1,
2, 3 or 5 of this Article XXII shall be made promptly, and in any
event within 60 days after receipt by the Corporation of the
written request of the Indemnitee, unless with respect to requests
under Section 1 or 2 of this Article XXII, a determination is made
within such 60-day period by the Board of Directors of the
Corporation by a majority vote of a quorum of disinterested
directors that such Indemnitee did not meet the applicable
standard of conduct set forth in Section 1 or Section 2 of this
Article XXII, as the case may be. In the event no quorum of
disinterested directors is obtainable, the Board of Directors
shall promptly direct that independent legal counsel shall
determine, based on facts known to such counsel at such time,
whether such Indemnitee met the applicable standard of conduct set
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<PAGE> 17
forth in such Sections; and, in such event, indemnification shall
be made to the Indemnitee unless within 60 days after receipt by
the Corporation of the request by such Indemnitee for
indemnification, such independent legal counsel in a written
opinion determines that the Indemnitee has not met the applicable
standard of conduct. The right to indemnification or advances as
granted by this Article XXII shall be enforceable by the
Indemnitee in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part, or if no
disposition thereof is made within the 60-day period referred to
above. Such Indemnitee's costs and expenses incurred in
connection with successfully establishing his right to
indemnification, in whole or in part, in any such proceeding shall
also be indemnified by the Corporation.
SECTION 7. SUBSEQUENT AMENDMENT. No amendment, termination
or repeal of this Article XXII or of relevant provisions of the
Delaware General Corporation Law or any other applicable laws
shall affect or diminish in any way the rights of any Indemnitee
to indemnification under the provisions hereof with respect to any
action, suit, proceeding or investigation arising out of, or
relating to any actions, transactions or facts occurring prior to
the final adoption of such amendment, termination or repeal.
SECTION 8. OTHER RIGHTS. The indemnification provided by
this Article XXII shall not be deemed exclusive of any other
rights to which an Indemnitee seeking indemnification may be
entitled under any law (common or statutory), agreement, vote of
stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in any other
capacity while holding office for or employed by the Corporation,
and shall continue as to a person who has ceased to be a director,
officer or employee, and shall inure to the benefit of the estate,
heirs, executors and administrators of such person. Nothing
contained in this Article XXII shall be deemed to prohibit, and
the Corporation is specifically authorized to enter into,
agreements with officers, directors and employees providing
indemnification rights and procedures different from those set
forth herein.
SECTION 9. PARTIAL INDEMNIFICATION. If an Indemnitee is
entitled under any provision of this Article XXII to
indemnification by the Corporation for some or a portion of the
costs, charges, expenses, judgments or fines actually and
reasonably incurred by him in the investigation, defense, appeal
or settlement of any proceeding but not, however, for the total
amount thereof, the Corporation shall nevertheless indemnify the
Indemnitee for the portion of such costs, charges, expenses,
judgments or fines to which such Indemnitee is entitled.
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<PAGE> 18
SECTION 10. INSURANCE. The Corporation may purchase and
maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss 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 such person against
such expense, liability or loss under the Delaware General
Corporation Law.
SECTION 11. MERGER, CONSOLIDATION, ETC. If the Corporation
is merged into or consolidated with another corporation and the
Corporation is not the surviving corporation, or if substantially
all of the assets or stock of the Corporation is acquired by any
other corporation, or in the event of any other similar
reorganization involving the Corporation, the Board of Directors
of the Corporation or the board of directors of any corporation
assuming the obligations of the Corporation shall assume the
obligations of the Corporation under this Article XXII, with
respect to any action, suit proceeding or investigation arising
out of or relating to any actions, transactions or facts occurring
prior to the date of such merger, consolidation, acquisition or
reorganization.
SECTION 12. SAVINGS CLAUSE. If this Article XXII or any
portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless
indemnify each Indemnitee as to any costs, charges, expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit, proceeding or
investigation, whether civil, criminal or administrative,
including an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this Article
XXII that shall not have been invalidated and to the full extent
permitted by applicable law.
SECTION 13. DEFINITIONS. Terms used herein and defined in
Section 145 (h) and Section 145 (i) of the Delaware General
Corporation Law shall have the respective meanings assigned to
such terms in such Section 145 (h) and Section 145 (i).
SECTION 14. SUBSEQUENT LEGISLATION. If the Delaware General
Corporation Law is amended after adoption of this Article XXII to
further expand the indemnification permitted to Indemnitees, then
the Corporation shall indemnify such persons to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
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<PAGE> 19
ARTICLE XXIII.
--------------
Fiscal Year
-----------
Except as from time to time otherwise provided by the Board
of Directors, the fiscal year of the Corporation shall end on the
last day of December of each year.
ARTICLE XXIV.
-------------
Amendments
----------
Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, these By-Laws as from time to time
altered or amended, may be made, altered or amended at any annual
or special meeting of the stockholders called for the purpose, of
which the notice shall specify the subject matter of the proposed
alteration or amendment or new By-Law or the Article or Articles
of these By-Laws to be affected thereby. If the Certificate of
Incorporation so provides, these By-Laws may also be made, altered
or amended by a majority of the whole number of directors, of
which notice shall specify the subject matter of the proposed
alteration or amendment or new By-Laws or the Article or Articles
of these By-Laws to be affected thereby.
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