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Exhibit 3.2
BYLAWS
OF
NEXELL THERAPEUTICS INC.
AMENDED AND RESTATED EFFECTIVE NOVEMBER 9, 1999,
AS FURTHER AMENDED ON JUNE 29, 2000
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ARTICLE I.
OFFICES
1.1 Registered Office. The registered office of Nexell Therapeutics
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Inc. (hereinafter called the "Corporation") in the State of Delaware shall
be at 9 East Loockerman Street in the City of Dover, County of Kent, and
the name of the registered agent in charge thereof shall be National
Registered Agents, Inc.
1.2 Other Offices. The Corporation may also have an office or
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offices at such other place or places, either within or without the State
of Delaware, as the Board of Directors (hereinafter called the "Board") may
from time to time determine or as the business of the Corporation may
require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
2.1 Annual Meetings. Annual meetings of the stockholders of the
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Corporation for the purpose of electing directors and for the transaction
of such other proper business as may come before such meetings may be held
at such time, date and place as the Board shall determine by resolution.
2.2 Special Meetings. A special meeting of the stockholders for the
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transaction of any proper business may be called at any time by the Board
or by the Chief Executive Officer.
2.3 Place of Meetings. All meetings of the stockholders shall be
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held at such places, within or without the State of Delaware, as may from
time to time be designated by the person or persons calling the respective
meeting and specified in the respective notices or waivers of notice
thereof.
2.4 Notice of Meetings. Except as otherwise required by law, notice
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of each meeting of the stockholders, whether annual or special, shall be
given not less than 10 nor
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more than 60 days before the date of the meeting to each stockholder of
record entitled to vote at such meeting by delivering a typewritten or
printed notice thereof to him personally, or by depositing such notice in
the United States mail or in the care of an express courier, in a postage
prepaid envelope, directed to him at his post office address or other
delivery address furnished by him to the Secretary of the Corporation for
such purpose or, if he shall not have furnished to the Secretary his
address for such purpose, then at his post office address last known to the
Secretary, or by transmitting a notice thereof to him at such address by
facsimile, telegraph, cable, or wireless. Except as otherwise expressly
required by law, no publication of any notice of a meeting of the
stockholders shall be required. Every notice of a meeting of the
stockholders shall state the place, date and hour of the meeting, and, in
the case of a special meeting, shall also state the purpose or purposes for
which the meeting is called. Notice of any meeting of stockholders shall
not be required to be given to any stockholder who shall have waived such
notice, and such notice shall be deemed waived by any stockholder who shall
attend such meeting in person or by proxy, except for a stockholder who
shall attend such 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. Except as otherwise expressly
required by law, notice of any adjourned meeting of the stockholders need
not be given if the time and place thereof are announced at the meeting at
which the adjournment is taken.
2.5 Quorum. Except in the case of any meeting for the election of
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directors summarily ordered as provided by law, the holders of record of a
majority in voting interest of the shares of stock of the Corporation
entitled to be voted thereat, present in person or by proxy, shall
constitute a quorum for the transaction of business at any meeting of the
stockholders of the Corporation or any adjournment thereof. In the absence
of a quorum at any meeting or any adjournment thereof, a majority in voting
interest of the stockholders present in person or by proxy and entitled to
vote thereat or, in the absence therefrom of all the stockholders, any
officer entitled to preside at or to act as secretary of such meeting may
adjourn such meeting from time to time. At any such adjourned meeting at
which a quorum is present, any business may be transacted which might have
been transacted at the meeting as originally called.
2.6 Voting.
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(a) Each stockholder shall, at each meeting of the stockholders, be
entitled to vote, in person or by proxy, each share or fractional share of
the stock of the Corporation which shall have voting rights on the matter
in question and which shall have been held by him and registered in his
name on the books of the Corporation:
(i) on the date fixed, pursuant to Section 6.5 of these Bylaws, as
the record date for the determination of stockholders entitled
to notice of and to vote at such meeting; or
(ii) if no such record date shall have been so fixed, then (A) at
the close of
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business on the day next preceding the on which notice of the
meeting shall be given; or (B) if notice of meeting shall be
waived, at the close of business on the day next the day on
which the meeting shall be held.
(b) Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors in such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Persons holding stock of the Corporation in a fiduciary capacity
shall be entitled to vote such stock. Persons whose stock is pledged shall
be entitled to vote, unless in the transfer by the pledgor on the books of
the Corporation he shall have expressly empowered the pledgee to vote
thereon, in which case only the pledgee or his proxy may represent such
stock and vote thereon. Stock having voting power standing of record in the
names of two or more persons or other entities, whether fiduciaries, members
of a partnership, joint tenants in common, tenants by entirety or otherwise,
or with respect to which two or more persons or other entities have the same
fiduciary relationship, shall be voted in accordance with the provisions of
the General Corporation Law of the State of Delaware.
(c) Any such voting rights may be exercised by the stockholder entitled
thereto in person or by his proxy appointed by an instrument in writing,
subscribed by such stockholder or by his attorney thereunto authorized, and
delivered to the secretary of the meeting; provided, however, that no proxy
shall be voted or acted upon after three years from its date, unless said
proxy shall provide for a longer period. The attendance at any meeting of a
stockholder who may theretofore have given a proxy shall not have the effect
of revoking the same unless he shall in writing so notify the secretary of
the meeting prior to the voting of the proxy. At any meeting of the
stockholders, all matters, except as otherwise provided in the Certificate
of Incorporation, in these Bylaws or by law, shall be decided by the vote of
a majority in voting interest of the stockholders present, in person or by
proxy, and entitled to vote thereat and thereon, a quorum being present.
The vote at any meeting of the Stockholders on any question need not be by
ballot, unless so directed by the chairman of the meeting. On a vote by
ballot, each ballot shall be signed by the stockholder voting or by his
proxy, if there be such proxy, and it shall state the number of shares
voted.
2.7 List of Stockholders. The Secretary of the Corporation shall
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prepare and make, at least 10 days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at
least 10 days prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to
be held. The list shall also be produced and kept at the time and place of
the meeting, during the whole time thereof, and may be inspected by
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any stockholder who is present.
2.8 Inspectors of Election. If at any meeting of the stockholders a
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vote by written ballot shall be taken on any question, the chairman of such
meeting may appoint an inspector or inspectors to act with respect to such
vote. Each inspector so appointed shall first subscribe an oath to
faithfully execute the duties of an inspector at such meeting, with strict
impartiality and according to the best of his ability. Such inspectors
shall decide upon the qualification of the voters, report the number of
shares represented at the meeting and entitled to vote on such question,
conduct and accept the votes, and, when the voting is completed, ascertain
and report the number of shares voted, respectively, for and against the
question. Reports of inspectors shall be in writing, subscribed and
delivered by them to the Secretary of the Corporation. The inspectors need
not be stockholders of the Corporation, and any officer of the Corporation
may be an inspector on any question other than a vote for or against a
proposal in which he shall have a material interest.
2.9 Action Without Meeting. Any action required to be taken at any
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annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of such stockholders,
may be taken without a meeting, without prior notice, and without a vote if
a consent or consents in writing, setting forth the action so taken, shall
be signed by the holders of outstanding shares of stock having not less
than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate
action without a meeting, where by less than unanimous written consent,
shall be given to those stockholders who have not consented in writing.
ARTICLE III.
BOARD OF DIRECTORS
3.1 General Powers. The property, business and affairs of the
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Corporation shall be managed by the Board.
3.2 Number and Term of Office. The number of directors shall not be
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less than three and not more than 15, as determined by the Board. Each of
the directors of the Corporation shall hold office until his successor
shall have been duly elected and shall qualify or until he shall resign or
shall have been removed in the manner hereinafter provided.
3.3 Election of Directors. The directors shall initially consist of
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the persons elected as such by the incorporator and thereafter shall be
elected annually by the stockholders of the Corporation entitled to vote
thereon, and the persons receiving the greatest number of votes, up to the
number of directors to be elected, shall be the directors.
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3.4 Resignations. Any director of the Corporation may resign at any
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time by giving written notice to the Board or to the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, it shall take effect immediately
upon its receipt; unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
3.5 Vacancies. Except as otherwise provided in the Certificate of
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Incorporation, any vacancy in the Board, whether because of death,
resignation, disqualification, an increase in the number of directors or
any other cause, may be filled by vote of the majority of the remaining
directors, although less than a quorum. Each director so chosen to fill a
vacancy shall hold office until his successor shall have been elected and
shall qualify or until he shall resign or shall have been removed in the
manner hereinafter provided.
3.6 Place of Meeting, Etc. The Board may hold any of its meetings at
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such place or places within or without the State of Delaware as the Board
may from time to time by resolution designate or as shall be designated by
the person or persons calling the meeting or in the notice or a waiver of
notice of any such meeting. Directors may participate in any regular or
special meeting of the Board by means of conference telephone or similar
communications equipment pursuant to which all persons participating in the
meeting of the Board can hear each other, and such participation shall
constitute presence in person at such meeting.
3.7 First Meeting. The Board shall meet as soon as practicable after
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each annual election of directors, and notice of such first meeting shall
not be required.
3.8 Regular Meetings. Regular meetings of the Board may be held at
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such times as the Board shall from time to time by resolution determine.
If any day fixed for a regular meeting shall be a legal holiday at the
place where the meeting is to be held, then the meeting shall be held at
the same hour and place on the next succeeding business day that is not a
legal holiday. Except as provided by law, notice of regular meetings need
not be given.
3.9 Special Meetings. Special meetings of the Board shall be held
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whenever called by the Chief Executive Officer or a majority in number of
directors then serving on the Board. Except as otherwise provided by law,
notice of the time and place of each such special meeting shall be mailed
to each director, addressed to him at his residence or usual place of
business, at least five days before the day on which the meeting is to be
held or shall be sent to him at such place by facsimile, wireless,
telegraph, or cable or be delivered personally not less than 24 hours
before the time at which the meeting is to be held.
Except where otherwise required by law or by these Bylaws, notice of the
purpose of a special meeting need not be given. Notice of any meeting of
the Board shall not be required to be given to any director who is present
at such meeting, except a director who shall attend such meeting for the
express purpose of objecting at the beginning of the
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meeting to the transaction of any business because the meeting is not
lawfully called or convened.
3.10 Quorum and Manner of Acting. Except as otherwise provided in the
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Certificate of Incorporation, in these Bylaws or by law, the presence of a
majority of the authorized number of directors shall be required to
constitute a quorum for the transaction of business at any meeting of the
Board, and all matters shall be decided at any such meeting, a quorum being
present, by the affirmative votes of a majority of the directors present.
In the absence of a quorum, a majority of directors present at any meeting
may adjourn the same, from time to time, until a quorum shall be present.
Notice of any adjourned meeting need not be given. The directors shall act
only as a Board, and the individual directors shall have no power as such.
3.11 Action by Consent. Any action required or permitted to be taken
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at any meeting of the Board or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of
the Board or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
3.12 Removal of Directors. Subject to the provisions of the
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Certificate of Incorporation, any director may be removed at any time,
either with or without cause, by an affirmative vote of stockholders having
a majority of the shares entitled to elect directors of the Corporation.
3.13 Compensation. The directors shall receive only such
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compensation for their services as directors as may be allowed by
resolution of the Board. The Board may also provide that the Corporation
shall reimburse each director for any expense incurred by him on account of
his attendance at any meetings of the Board or committees of the Board.
Neither the payment of such compensation nor the reimbursement of such
expenses shall be construed to preclude any director from serving the
Corporation or its subsidiaries in any other capacity and receiving
compensation therefor.
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3.14 Committees. The Board may, by resolution passed by a majority
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of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. Any such
committee, to the extent provided in the resolution of the Board and except
as otherwise limited by law, shall have and may exercise all the powers and
authority of the Board 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. Any such committee shall keep written
minutes of its meetings and report the same to the Board at the next
regular meeting of the Board. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the Board to act at the meeting in
the place of any such absent or disqualified member.
ARTICLE IV.
OFFICERS
4.1 Executive Officers: Number and Titles. The executive officers of
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the Corporation shall consist solely of those persons elected by the Board
and designated as executive officers. The executive officers of the
Corporation shall consist of a Chairman of the Board, a Chief Executive
Officer, a President, a Secretary, a Treasurer, and, in the discretion of
the Board, a Chief Financial Officer, a Chief Operating Officer, and one or
more executive or senior vice presidents carrying such descriptive titles,
if any, as the Board may designate. Any two or more executive offices may
be held by the same person.
4.2 Election, Term of Office, and Qualifications. Notwithstanding a
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multi-year employment agreement with any executive officer, the executive
officers of the Corporation shall be elected annually by the Board at the
first meeting thereof held after the annual meeting of the stockholders of
the Corporation. Each executive officer shall hold office at the pleasure
of the Board until his successor shall have been duly elected and qualified
or until his death or earlier resignation or removal from office. The
election to office shall not confer on the individual elected any
contractual rights to continued employment. Any two or more offices may be
held by the same person. No officer need be a stockholder, a director, a
resident of any particular State, or a citizen of the United States.
4.3 Subordinate Officers, Assistants, Agents, and Employees. In
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addition to the executive officers specified in Section 4.1 above, the
Board may appoint other vice presidents, assistants, agents, and employees
as it may deem necessary or advisable, each of whom shall hold office for
such period, have such authority, and perform such duties as the Board may
from time to time determine. The Board may delegate to any executive
officer of the Corporation or any committee of the Board the power to
appoint, remove, and prescribe the duties of any such subordinate officers,
assistants, agents, or employees.
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4.4 Removal and Suspension. Any executive officer, subordinate
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officer, assistant, agent, or employee of the Corporation may be removed,
with or without cause, at any time as follows: (i) in the case of any
executive officer, only by resolution of the Board; (ii) in the case of any
subordinate officer, assistant, agent, or employee appointed by the Board,
only by resolution of the Board; and (iii) in the case of any other
subordinate officer, assistant, agent, or employee, by any executive
officer of the Corporation or committee of the Board upon whom such power
of removal may have been conferred by the Board. The removal of any
executive officer, subordinate officer, assistant, agent, or employee shall
not impair or prejudice the contractual rights, if any, of such person.
The Chief Executive Officer may suspend, with or without cause and without
prior notice, any executive officer, subordinate officer, assistant, agent,
or employee, pending final action of the Board with respect to such
continued suspension, removal, or reinstatement of such person.
4.5 Resignations. Any officer may resign at any time by giving
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written notice of his resignation to the Board, the Chief Executive Office,
or the Secretary of the Corporation. Any such resignation shall take
effect at the time specified therein or, if the time is not specified, upon
receipt thereof by the Board, the Chief Executive Officer, or the
Secretary, as the case may be; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
No resignation shall relieve the person of any contractual obligations that
he may have to the Corporation.
4.6 Vacancies. A vacancy in any office, whether because of death,
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resignation, removal, disqualification, or otherwise, may be filled for the
unexpired portion of the term thereof in the manner prescribed by these
Bylaws for regular appointments or elections to such office.
4.7 The Chairman of the Board. The Chairman of the Board shall
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preside at all meetings of the stockholders, the Board, and any committee
on which he serves. The Chairman in his role as an executive officer shall
not have any authority with respect to the business, financial affairs, or
day-to-day operations of the Corporation. At the request of the Chairman,
or in case of his absence or inability to act, unless otherwise directed by
the Board, the Chief Executive Officer shall perform the duties of the
Chairman and, when so acting, shall have all the powers of, and be subject
to all the restrictions upon, the Chairman.
4.8 The Chief Executive Officer. The Chief Executive Officer shall
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be the highest ranking executive officer of the Corporation and, subject to
the supervision of the Board, shall have all authority and power with
respect to, and shall be responsible for, the general management of the
business, financial affairs, and day-to-day operations of the Corporation.
The Chief Executive Officer shall see that all orders and resolutions of
the Board are carried into effect and shall perform such other duties and
have such other authority and powers as the Board may from time to time
prescribe. At the request of the Chief Executive Officer, or in case of
his absence or inability to act, unless otherwise directed by the Board,
the President shall perform the duties of the Chief Executive
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Officer and, when so acting, shall have all the powers of, and be subject
to all the restrictions upon, the Chief Executive Officer.
4.9 The President and Chief Operating Officer. Unless the Board
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shall designate otherwise, the President shall be the Chief Operating
Officer of the Corporation. The President and Chief Operating Officer
shall report to the Chief Executive Officer and shall have, subject to the
control of the Chief Executive Officer and the Board, active supervision
and management over the day-to-day operations of the Corporation and over
its subordinate officers, assistants, agents, and employees. At the
request of the President, or in case of his absence or inability to act,
unless otherwise directed by the Board, the Chief Executive Officer shall
perform the duties of the President and, when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the President.
4.10 The Treasurer and Chief Financial Officer. Unless the Board
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shall designate otherwise, the Treasurer shall be the Chief Financial
Officer of the Corporation. The Treasurer and Chief Financial Officer
shall report to the Chief Executive Officer and shall have, subject to the
control of the Chief Executive Officer and the Board, the general care and
custody of the funds and securities of the Corporation and the authority
and power with respect to, and the responsibility for, the Corporation's
accounting, auditing, reporting, and financial record-keeping methods and
procedures; controls and procedures with respect the receipt, tracking, and
disposition of the revenues and expenses of the Corporation; the
establishment and maintenance of depository, checking, savings, investment,
and other accounts of the Corporation; relations with accountants,
financial institutions, lenders, underwriters, and analysts; the
development and implementation of funds management and short-term
investment strategies; the preparation of financial statements and all tax
returns and filings of the Corporation; and the supervision and management
of all subordinate officers and personnel associated with the foregoing.
4.11 The Secretary. The Secretary shall take and transcribe the
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minutes of all meetings of the Board, of any committee, and of the
stockholders, or consents in lieu thereof, shall insert such minutes and
consents in the Corporation's minute books, and shall cause notice of such
meetings to be given when requested by any person authorized to call such
meetings. The Secretary may sign with the Chief Executive Officer or
President, in the name of the Corporation, all contracts of the Corporation
and affix the seal of the Corporation thereto. The Secretary shall have
charge and custody of the Corporation's seal, minute book, stock
certificate books, and stock transfer ledger. The Secretary shall perform
such other duties as may be prescribed from time to time by the Board of
Directors or as may be delegated from time to time by the Chief Executive
Officer.
4.12 The Vice Presidents. Each Executive Vice President shall have
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such powers and perform such duties as the Board may from time to time
prescribe. Each Vice President shall have such powers and perform such
duties as the executive officer or
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committee empowered to appoint such Vice President shall from time to time
prescribe.
4.13 Compensation. The compensation of the executive officers of the
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Corporation shall be fixed from time to time by the Board or a committee
thereof, or by written agreement authorized by the Board or a committee
thereof. No officer shall be prevented from receiving such compensation by
reason of the fact that he is also a director of the Corporation, provided,
however, that such person shall abstain from voting as a director on the
issue of his compensation. Nothing contained herein shall preclude any
officer from serving the Corporation, or any subsidiary corporation, in any
other capacity and receiving proper compensation therefor.
ARTICLE V.
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1 Execution of Contracts. The Board, except as in these Bylaws
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otherwise provided, may authorize any officer or officers, agent or agents,
to enter into any contract or execute any instrument in the name of and on
behalf of the Corporation, and such authority may be general or confined to
specific instances.
5.2 Checks, Drafts, Etc. All checks, drafts, or other orders for
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payment of money, notes, or other evidence of indebtedness issued in the
name of or payable to the Corporation shall be signed or endorsed by such
person or persons and in such manner as from time to time shall be
determined by resolution of the Board. Each such officer, assistant, agent
or attorney shall give such bond, if any, as the Board may require.
5.3 Deposits. All funds of the Corporation not otherwise employed
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shall be deposited from time to time to the credit of the Corporation in
such banks, trust companies or other depositories as the Board may select
or as may be selected by any officer or officers, assistant or assistants,
agent or agents, or attorney or attorneys of the Corporation to whom such
power shall have been delegated by the Board. For the purpose of deposit
and collection for the account of the Corporation, the Chief Executive
Officer, the President, any Vice President or the Treasurer (or any other
officer or officers, assistant or assistants, agent or agents, or attorney
or attorneys of the Corporation who shall from time to time be determined
by the Board) may endorse, assign, and deliver checks, drafts and other
orders for the payment of money which are payable to the order of the
Corporation.
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5.4 General and Special Bank Accounts. The Board may from time to
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time authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositories as the Board may
select or as may be selected by any officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to
whom such power shall have been delegated by the Board. The Board may make
such special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as it may deem expedient.
ARTICLE VI.
SHARES AND THEIR TRANSFER
6.1 Certificates for Stock. Every owner of stock of the Corporation
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shall be entitled to have a certificate or certificates, to be in such form
as the Board shall prescribe, certifying the number and class of shares of
the stock of the Corporation owned by him. The certificates representing
shares of such stock shall be numbered in the order in which they shall be
issued and shall be signed in the name of the Corporation by the Chairman
of the Board, Chief Executive Officer, the President, or a Vice President,
and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer. Any or all of the signatures on the certificates may
be a facsimile. In case any officer, transfer agent or registrar who has
signed, or whose facsimile signature has been placed upon, any such
certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, such certificate may
nevertheless be issued by the Corporation with the same effect as though
the person who signed such certificate, or whose facsimile signature shall
have been placed thereupon, were such officer, transfer agent or registrar
at the date of issue. A record shall be kept of the respective names of
the persons, firms or corporations owning the stock represented by such
certificates, the number and class of shares respectively represented by
such certificates, the respective dates thereof, and, in case of
cancellation, the respective dates of cancellation. Every certificate
surrendered to the Corporation for exchange or transfer shall be cancelled,
and no new certificate or certificates shall be issued in exchange for any
existing certificate until such existing certificate shall have been so
cancelled, except in cases provided for in Section 6.4.
6.2 Transfers of Stock. Transfers of shares of stock of the
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Corporation shall be made only on the books of the Corporation by the
registered holder thereof or by his attorney thereunto authorized by power
of attorney, duly executed and filed with the Secretary, or with a transfer
clerk or a transfer agent, appointed as provided in Section 6.3, and upon
surrender of the certificate or certificates for such shares, properly
endorsed, and the payment of all taxes thereon. The person in whose name
shares of stock stand on the books of the Corporation shall be deemed the
owner thereof for all purposes as regards the Corporation. Whenever any
transfer of shares shall be made for collateral security, and not
absolutely, such fact shall be so expressed in the entry of transfer if,
when the certificate or certificates shall be presented to the Corporation
for transfer, both the transferor and the transferee request the
Corporation to do so.
6.3 Regulations. The Board may make such rules and regulations as it
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may
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deem expedient, not inconsistent with these Bylaws, concerning the issue,
transfer and registration of certificates for shares of the stock of the
Corporation. It may appoint, or authorize any officer or officers to
appoint, one or more transfer clerks or one or more transfer agents and one
or more registrars and may require all certificates for stock to bear the
signature or link signatures of any of them.
6.4 Lost, Stolen, Destroyed and Mutilated Certificates. In any case
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of loss, theft, destruction or mutilation of any certificate of stock,
another may be issued in its place upon proof of such loss, theft,
destruction, or mutilation and upon the giving of a bond of indemnity to
the Corporation, in such form and in such sum as the Board may direct;
provided, however, that a new certificate may be issued without requiring
any bond when, in the judgment of the Board, it is proper so to do.
6.5 Fixing Date for Determination of Stockholders of Record. In
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order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment
thereof, to express consent to corporate action in writing without a
meeting, to receive payment of any dividend or other distribution or
allotment of any rights, to exercise any rights in respect of any other
change, conversion, or exchange of stock, or for the purpose of any other
lawful action, the Board may fix, in advance, a record date, which shall
not be more than 60 nor less than 10 days before the date of any such
meeting of stockholders nor more than 60 days prior to any other action.
If, in any case involving the determination of stockholders for any purpose
other than notice of or voting at a meeting of stockholders or expressing
consent to corporate action without a meeting, the Board shall not fix such
a record date, the record date for determining stockholders for such
purpose shall be the close of business on the day on which the Board shall
adopt the resolution relating thereto. A determination of stockholders
entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of such meeting; provided, however, that the Board may
fix a new record date for the adjourned meeting.
ARTICLE VII.
INDEMNIFICATION
7.1 Action, Etc. Other Than by or in the Right of the Corporation.
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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 a director, officer or employee of
the Corporation, or that, being such a director, officer or employee, he is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise (all persons serving or having served in such
capacities hereinafter referred to as "indemnitees"), against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding 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
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action or proceeding, had no reasonable cause to believe his conduct was
unlawful; provided, however, that, except as provided in Section 7.6 hereof
with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with any
proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by two-thirds of the Board. The
termination of any action, suit or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the indemnitee
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.
7.2 Actions, Etc., by or in the Right of the Corporation. The
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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 an indemnitee (as
defined above) against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation,
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
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
7.3 Indemnification for Expenses. To the extent that an indemnitee
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of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 7.1 or
7.2, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
7.4 Determination of Right of Indemnification. Any indemnification
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under Section 7.1 or 7.2 (unless ordered by a court) shall be made by the
Corporation unless a determination is reasonably and promptly made (i) by
the Board by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding; or (ii) if such a quorum is
not obtainable, or even if obtainable, a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion; or (iii) by
the stockholders, that such person acted in bad faith and in a manner that
such person did not believe to be in or not opposed to the best interests
of the Corporation or, with respect to any criminal proceeding, that such
person believed or had reasonable cause to believe that his conduct was
unlawful.
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7.5 Advances of Expenses. Expenses (including attorneys' fees)
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incurred by an indemnitee in defending any civil, criminal, administrative
or investigative action, suit or proceeding or any appeal therefrom shall
be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding if the Corporation shall have received an
undertaking by or on behalf of the indemnitee to repay any amounts so
advanced in the event that he is ultimately determined not to be entitled
to be indemnified by the Corporation as authorized in this Article.
7.6 Right of Indemnitee to Indemnification Upon Application. Any
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indemnification pursuant to Sections 7.1 and 7.4 or Sections 7.2 and 7.4 or
any advance made pursuant to Section 7.5 of this Article, shall be made
promptly (and, in any event, within 90 days, in the case of
indemnification, and 60 days, in the case of an advancement, of the receipt
by the Secretary of the Corporation of the written request of the
indemnitee), unless, with respect to applications under Sections 7.1, 7.2
or 7.5, a determination is promptly made by the Board or by a majority vote
of disinterested directors that the indemnitee acted in a manner set forth
in such Sections as to justify the Corporation's not indemnifying or making
an advance to the indemnitee. In the event no quorum of disinterested
directors is obtainable, the Board shall promptly direct that independent
legal counsel shall decide whether the indemnitee acted in the manner set
forth in such Sections as to justify the Corporation's not indemnifying or
making an advance to the indemnitee. The right to indemnification or
advances, as granted by this Article, shall be enforceable by the
indemnitee in any court of competent jurisdiction if the Board or
independent legal counsel denies the claim, whether in whole or in part, or
if no disposition of such claim is made within ninety days. The
indemnitee's costs and expenses incurred in connection with successfully
establishing his right to indemnification, whether in whole or in part, in
any such proceeding shall also be indemnified by the Corporation.
7.7 Other Rights and Remedies. The rights provided by or granted
-------------------------
pursuant to this Article shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under the Certificate of Incorporation, any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise, both as to action
in an indemnitee's official capacity and as to action in another capacity
while vested with such official capacity. All rights provided pursuant to
this Article shall be deemed to be provided by a contract between the
Corporation and the indemnitee who serves in such official capacity at any
time while these Bylaws are in effect and are intended to be retroactive
and available with respect to actions taken in an official capacity or
actions taken while vested with such official capacity prior to the
adoption hereof. Any repeal or modification of any provisions hereof shall
not affect any rights or obligations existing at the time of such repeal or
modification.
7.8 Insurance. Upon resolution passed by the Board, the Corporation
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may (i) purchase and maintain insurance on behalf of any person who is or
was an indemnitee against any liability asserted against him and incurred
by him in any such capacity or
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arising out of his status as such, whether or not the Corporation would
have the power to indemnify him against such liability under the provisions
of this Article; or (ii) create a trust fund, grant a security interest or
use other means (including, without limitation, a letter of credit) to
ensure the payment of such sums as may become necessary to effect
indemnification as provided herein.
7.9 Other Enterprises, Fines and Serving at the Corporation's
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Request. For purposes of this Article, references to "other enterprises"
-------
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; references to "serving at the request of the Corporation" shall
include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article.
7.10 Beneficiaries of this Article. The rights provided by, or
-----------------------------
granted pursuant to the provisions of this Article shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
ARTICLE VIII.
MISCELLANEOUS
8.1 Fiscal Year. The fiscal year of the Corporation shall be
-----------
determined by resolution of the Board. In the absence of such resolution,
the fiscal year of the Corporation shall be the calendar year.
8.2 Seal. The Board shall provide a corporate seal, which shall be
----
in the form of a circle and shall bear the name of the Corporation and
words and figures showing that the Corporation was incorporated in the
State of Delaware and the year of incorporation.
8.3 Waiver of Notices. Whenever notice is required to be given by
-----------------
these Bylaws or the Certificate of Incorporation, the person entitled to
said notice may waive such notice in writing, either before or after the
time stated therein, and such waiver shall be deemed equivalent to notice.
8.4 Amendments. These Bylaws, or any of them, may be altered,
----------
amended or repealed, and new Bylaws may be made, (i) by the Board, by vote
of a majority of the number of directors then in office as directors acting
at any meeting of the Board; or (ii) by the stockholders holding shares of
a class of stock entitled to vote for the election of directors, at any
annual meeting of stockholders, without previous notice, or at any special
meeting of stockholders, provided that notice of such proposed amendment,
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modification, repeal or adoption is given in the notice of special meeting.
Any bylaws made or altered by the stockholders may be altered or repealed
by either the Board or the stockholders.
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