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GENVEC, INC.
Amended and Restated Bylaws
(As of , 2000)
ARTICLE 1.
OFFICES
1.1. The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
1.2. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the Corporation may require.
ARTICLE 2.
MEETINGS OF STOCKHOLDERS
2.1. All meetings of the stockholders shall be held at such place,
within or without the State of Delaware, as shall be fixed from time to time by
the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
2.2. An annual meeting of stockholders shall be held each year on a
date and time designated by the Board of Directors and stated in the notice of
the meeting, at which meeting the stockholders shall elect directors and
transact such other business as may properly be brought before the meeting. Only
such business may be conducted as has been brought before an annual meeting of
stockholders by, or at the direction of, the Board of Directors, or by a
stockholder who has given timely written notice to the Secretary of the
Corporation of such stockholder's intention to bring such business before the
meeting pursuant to Section 2.11 of these Bylaws.
2.3. Except as otherwise provided by law or by the Certificate of
Incorporation of the Corporation and subject to the rights of holders of
Preferred Stock (as defined in the Certificate of Incorporation), special
meetings of the stockholders for any purpose or purposes may be called at any
time only by the President of the Corporation or by the Board of Directors
pursuant to a resolution adopted by a majority of the members of the Board of
Directors then in office. Business transacted at any special meeting of
stockholders, other than procedural matters and matters relating to the conduct
of the meeting, shall be limited to the purpose or purposes stated in the notice
of the meeting pursuant to Section 2.4 of these Bylaws.
2.4. Written notice of the annual or any special meeting of the
stockholders shall be given to each stockholder entitled to vote at such meeting
not less than ten nor
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more than sixty days before the date of the meeting (unless a different time
is specified by law). The notice shall state the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for
which such meeting has been called. If mailed, notice is given when deposited
in the United States mail, postage prepaid, directed to the stockholder at
his address as it appears on the records of the Corporation. Any such notice
may be waived and shall be deemed waived by any stockholder who signs a
written waiver of such notice before or after the time stated therein, or by
any stockholder who attends the meeting unless at the beginning of the
meeting or promptly upon arrival, the stockholder objects to the holding of
the meeting or the transacting of specified business at the meeting.
2.5. At all meetings of the stockholders, the holders of stock having a
majority in voting power of the stock issued and outstanding and entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum for the transaction of business. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the chairman of the
meeting or the holders of stock having a majority of the voting power of the
stock entitled to vote thereat who are present in person or represented by proxy
shall have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting or as may be required under the Delaware
General Corporation Law, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. 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. Once a quorum is
established, it shall not be broken by the subsequent withdrawal of enough votes
leaving less than a quorum.
2.6. The Board of Directors of the Corporation may adopt by resolution
such rules and regulations for the conduct of the meeting of the stockholders as
it shall deem appropriate. At every meeting of stockholders, the Chairman of the
Board of Directors, or in his absence or inability to act, the President, or, in
his absence or inability to act, the person whom the Chairman or Vice Chairman,
if any, shall appoint, shall act as chairman of, and preside at, the meeting.
The Secretary or, in his absence or inability to act, the person whom the
chairman of the meeting shall appoint secretary of the meeting, shall act as
secretary of the meeting and keep the minutes thereof. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of the stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (a) the establishment of an agenda
or order of business for the meeting; (b) the determination of when the polls
shall open and close for any given matter to be voted on at the meeting; (c)
rules and procedures for maintaining order at the meeting and the safety of
those present; (d) limitations on attendance at or participation in the meeting
to stockholders of record of the corporation, their duly authorized and
constituted proxies or such other
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persons as the chairman of the meeting shall determine; (e) restrictions on
entry to the meeting after the time fixed for the commencement thereof; and
(f) limitations on the time allotted to questions or comments by participants.
2.7. When a quorum is present at any meeting, all elections for the
Board of Directors shall be decided by a plurality of the votes of shares
present in person or represented by proxy at the meeting and entitled to vote in
the election of directors, and all other questions shall be decided by the
affirmative vote of a majority of shares present in person or represented by
proxy at the meeting and entitled to vote on the subject matter, except as
otherwise required by statute or as provided for in the Certificate of
Incorporation or these Bylaws. Abstentions shall not be considered to be votes
cast.
2.8. The officer who has charge of the stock ledger of the Corporation
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 such stockholder and the
number of shares registered in the name of each such 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 where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
2.9. Unless otherwise provided in the Certificate of Incorporation, any
action required to be taken at any annual or special meeting of stockholders, or
any action that may be taken at any annual or special meeting of stockholders,
may be taken without a meeting, without prior notice, and without a vote if a
consent in writing, setting forth the action so taken, is signed by the holders
of the outstanding 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 by less than unanimous written
consent shall be provided in accordance with Section 228 of the General
Corporation Law of Delaware.
Notwithstanding the foregoing, effective upon the closing of a firm
commitment public offering of Common Stock of the Corporation, no action that is
required or permitted to be taken at any annual or special meeting of
stockholders of the Corporation, may be effected by written consent of
stockholders in lieu of a meeting of stockholders.
2.10. Votes by written ballot at any meeting of stockholders may be
conducted by one or more inspectors, appointed for that purpose, either by the
Board of Directors or by the chairman of the meeting. The inspector or
inspectors may decide upon the qualifications of voters and the validity of
proxies, and may count the votes and declare the result.
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STOCKHOLDER PROPOSALS AND NOMINATIONS
2.11. (a) No proposal for a stockholder vote shall be submitted by a
stockholder (a "Stockholder Proposal") to the Corporation's stockholders unless
the stockholder submitting such proposal (the "Proponent") shall have filed a
written notice setting forth with particularity (i) the names and business
addresses of the Proponent and all Persons (as such term is defined in Section
3(a)(9) of the Securities Exchange Act of 1934 ("1934 Act"), as amended through
the date of adoption of these Bylaws) acting in concert with the Proponent; (ii)
the names and addresses of the Proponent and the Persons identified in clause
(i), as they appear on the Corporation's books (if they so appear); (iii) the
class and number of shares of the Corporation beneficially owned by the
Proponent and the Persons identified in clause (i); (iv) a description of the
Stockholder Proposal containing all material information relating thereto; and
(v) such other information as the Board of Directors reasonably determines is
necessary or appropriate to enable the Board of Directors and stockholders of
the Corporation to consider the Stockholder Proposal.
(b) Only persons who are selected and recommended by the Board
of Directors or a committee thereof, or who are nominated by stockholders in
accordance with the procedures set forth in this Section 2.11, shall be eligible
for election, or qualified to serve, as Directors. Nominations of individuals
for election to the Board of Directors of the Corporation at any annual meeting
or any special meeting of stockholders at which Directors are to be elected may
be made by any stockholder of the Corporation entitled to vote for the election
of Directors at that meeting by compliance with the procedures set forth in this
Section 2.11. Nominations by stockholders (the "Nominating Stockholders") shall
be made by written notice (a "Nomination Notice"), which shall set forth (i) as
to each individual nominated, (A) the name, date of birth, business address and
residence address of such individual; (B) the business experience during the
past five years of such nominee, including his or her principal occupations and
employment during such period, the name and principal business of any
corporation or other organization in which such occupations and employment were
carried on and such other information as to the nature of his responsibilities
and level of professional competence as may be sufficient to permit assessment
of his prior business experience; (C) whether the nominee is or has ever been at
any time a Director, officer or owner of more than five percent (5%) or more of
any class of capital stock, partnership interests or other equity interest of
any corporation, partnership or other entity; (D) any directorships held by such
nominee in any company with a class of securities registered pursuant to Section
12 of the 1934 Act, as amended, or subject to the requirements of Section 15(d)
of such Act or any company registered as an investment company under the
Investment Company Act of 1940, as amended; and (E) whether, in the last five
years, such nominee has been convicted in a criminal proceeding or has been
subject to a judgment, order, finding or decree of any federal, state or other
governmental entity, concerning any violation of federal, state or other law, or
any proceeding in bankruptcy, which conviction, judgment, order, finding, decree
or proceeding may be material to an evaluation of the ability or integrity of
the nominee; and (ii) as to the Nominating Stockholder and any Persons acting in
concert with such Nominating Stockholder (x) the
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names and business addresses of such Nominating Stockholder and such Persons,
(y) the names and addresses of such Nominating Stockholder and such Persons
as they appear on the Corporation's books (if they so appear) and (z) the
class and number of shares of the Corporation which are beneficially owned by
such Nominating Stockholder and such Persons. A written consent to being
named in a proxy statement as a nominee, and to serve as a Director if
elected, signed by the nominee, shall be filed with any Nomination Notice. If
the presiding officer at any stockholders meeting determines that a
nomination was not made in accordance with the procedures prescribed by these
Bylaws, such officer shall so declare to the meeting and the defective
nomination shall be disregarded.
(c) Nomination Notices and Stockholder Proposals for an
annual stockholders meeting shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than one hundred twenty (120) days
nor more than one hundred fifty (150) days prior to the anniversary of the
mailing date of the Corporation's proxy materials for the preceding annual
meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days before or after
the anniversary date of such meeting, notice by the stockholder to be timely
must be so delivered not later than the close of business on the tenth (10th)
day following the day on which notice of the date of the annual meeting was
mailed to stockholders or public disclosure of the date of the annual meeting
was made, whichever first occurs. In no event shall the public announcement of
an adjournment of an annual meeting commence a new time period for the giving of
a stockholder's notice as described above.
(d) Except as otherwise provided by law, the Chairman
of the meeting shall have the power and duty to determine whether a nomination
or any business proposed to be brought before the meeting was made, or proposed,
as the case may be, in accordance with the procedures set forth in these Bylaws
and, if any proposed nomination or business is not in compliance with these
Bylaws, to declare that such defective proposal or nomination shall not be
presented for stockholder action at the meeting and shall be disregarded.
(e) Notwithstanding the foregoing provisions of this
Section 2.11, in order to include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a stockholders' meeting,
stockholders must provide notice as required by the regulations promulgated
under the 1934 Act. Nothing in these Bylaws shall be deemed to affect any rights
of stockholders to request inclusion of proposals in the Corporation proxy
statement pursuant to Rule 14a-8 under the 1934 Act.
(f) For purposes of this Section 2.11, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news or wire service or in
a document publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
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ARTICLE 3.
BOARD OF DIRECTORS
3.1. The business of the Corporation shall be managed by its Board of
Directors, which may exercise all such powers of the Corporation and all such
lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or done by
the stockholders.
3.2. Subject to the rights of the Preferred Stock, the number of
Directors that shall constitute the whole Board shall be the number from time to
time fixed exclusively by a vote of a majority of the Board of Directors then in
office, which number shall not be less than one. The Board by resolution may
from time to time increase or decrease the number of Directors to any number not
less than one, provided that any reduction in the number of Directors shall not
have the effect of shortening the term of any Director in office at the time
such resolution becomes effective and provided that the number of Directors
shall not be increased by fifty percent (50%) or more in any twelve-month period
without the approval of at least eighty percent (80%) of the members of the
Board of Directors then in office. The phrase "the whole Board," as used in
these Bylaws, shall refer to the total number of Directors which the Corporation
would have if there were no vacancies. The Directors shall be elected at the
Annual Meeting of the stockholders as provided in Section 6.4 of the Certificate
of Incorporation, except as provided in Section 3.3 of these Bylaws, and each
Director elected shall hold office until removal or resignation or until his
successor is elected and qualified. A Director may resign at any time by giving
written notice to the Chairman of the Board, to the President or to the
Secretary. Unless otherwise stated in such notice of resignation, the acceptance
thereof shall not be necessary to make it effective; and such resignation shall
take effect at the time specified therein or, in the absence of such
specification, it shall take effect upon the receipt thereof.
3.3. Any or all of the Directors may be removed only for cause by the
stockholders, as provided for in the Certificate of Incorporation. For purposes
of this Section 3.3., "cause" for removal of a Director shall be deemed to exist
only if: (i) the Director whose removal is proposed has been convicted, or when
a Director is granted immunity to testify when another has been convicted, of a
felony by a court of competent jurisdiction and such conviction is no longer
subject to direct appeal; (ii) such Director has been found by the affirmative
vote of a majority of the Directors then in office at any regular or special
meeting of the Board of Directors called for that purpose, or by a court of
competent jurisdiction, to have been guilty of willful misconduct in the
performance of his duties to the Corporation in a matter of substantial
importance to the Corporation; (iii) such Director has been adjudicated by a
court of competent jurisdiction to be mentally incompetent, which mental
incompetency directly affects his ability as a Director of the Corporation; or
(iv) the entry of any order against such Director by any governmental body
having regulatory authority with respect to the Corporation's business.
Notwithstanding the foregoing, whenever holders of outstanding shares of one or
more series of Preferred Stock are entitled to elect Directors of the
Corporation pursuant to the provisions applicable in the case of arrearages in
the payment of dividends or other
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defaults contained in the resolution or resolutions of the Board of Directors
providing for the establishment of any such series, any such Director of the
Corporation so elected may be removed in accordance with the provisions of
such resolution or resolutions.
3.4. Vacancies and newly created directorships resulting from any
increase in the authorized number of Directors may be filled by a majority of
the remaining Directors then in office, though less than a quorum, or by a sole
remaining Director, and the Directors so chosen shall hold office until the next
election of the class for which such Directors have been chosen and until their
successors are duly elected and qualified. If at any time there are no Directors
in office, by reason of death, resignation or other cause, then any stockholders
or any executor or administrator or other fiduciary entrusted with like
responsibility for the estate of a stockholder may call a special meeting of the
stockholders to elect a Board of Directors. If at the time of filling any
vacancy or any newly created directorship, the Directors then in office shall
constitute less than a majority of the whole Board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares outstanding at the time and having the right to vote for such
Directors, summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the Directors chosen by the Directors
then in office.
MEETINGS OF THE BOARD OF DIRECTORS
3.5. The Board of Directors of the Corporation may hold meetings, both
regular and special, either within or without the State of Delaware.
3.6. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board. A meeting of the Board of Directors for the election of officers
and the transaction of such other business as may come before it may be held
without notice immediately following the annual meeting of stockholders.
3.7. Special meetings of the Board may be called by the Chairman of the
Board, the President or upon the written request of a majority of the Board of
Directors. Notice of a special meeting shall be given to each Director either by
mail not less than forty-eight hours before the date of such meeting, by
telephone or telegram on twenty-four (24) hours' notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate under the circumstances. Any such notice may be waived and shall be
deemed waived by any Director who signs a written waiver of such notice before
or after the time stated therein or who is present at a meeting of the Board of
Directors when a vote on any matter is taken unless at the beginning of the
meeting or promptly upon arrival, the Director objects to the holding of the
meeting or the transacting of specified business at the meeting.
3.8. At all meetings of the Board, a majority of the Directors
constituting the whole Board shall constitute a quorum for the transaction of
business, and the vote of a
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majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, the Certificate of Incorporation or these
Bylaws. If a quorum shall not be present at any meeting of the Board of
Directors, the Directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
3.9. Unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, 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 committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of the Board or committee.
3.10. A Director of the Corporation who is present at a meeting of the
Board of Directors when a vote on any matter is taken is deemed to have assented
to the action taken unless he votes against or abstains from the action taken,
or unless at the beginning of the meeting or promptly upon arrival, the Director
objects to the holding of the meeting or the transacting of specified business
at the meeting. Any such dissenting votes, abstentions or objections shall be
entered in the minutes of the meeting.
THE CHAIRMAN OF THE BOARD AND THE
VICE-CHAIRMAN OF THE BOARD
3.11. The Board of Directors, at its first meeting following the annual
meeting of stockholders in each year, or at such other time when there shall be
a vacancy, shall elect one of its members as Chairman of the Board, and may
elect one of its members as Vice-Chairman of the Board; each to serve for one
year or until his successor is elected and qualified. The Chairman of the Board
shall preside at all meetings of the stockholders, except as the Board may
otherwise determine, and of the Board of Directors and shall perform such other
duties as may be required of him by the Board of Directors and by these Bylaws.
The Vice-Chairman of the Board, if one is elected, shall, in the absence of the
Chairman of the Board, preside at the meetings of the stockholders and of the
Board of Directors and shall perform such other duties as may be required of him
by the Board of Directors. In the absence of the Chairman of the Board and the
Vice-Chairman, if any, those members of the Board who are present shall choose
from among themselves a person to preside at the meeting of the Board.
COMMITTEES OF DIRECTORS
3.12. 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, by resolution
passed by a majority of the whole Board, 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. Any such committee, to the extent
provided in the resolution and as limited by the Delaware General Corporation
Law, shall have and may exercise the
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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 any member of such committee or committees, except as
otherwise provided to the extent that there shall have been designated
alternate members who shall be present, 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. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the
Board of Directors. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors as requested by the Board of
Directors.
COMPENSATION OF DIRECTORS
3.13. The Board of Directors shall have the authority to fix the
compensation to be paid to Directors. The Directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors, or of any
committee of the Board of Directors, in addition to a fixed sum for attendance
at each such meeting and/or a stated salary as Director or committee member.
Unless otherwise provided by the Board of Directors, no such payment shall
preclude any Director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE 4.
OFFICERS
4.1. The Board of Directors shall elect the officers of the
Corporation, which shall be a President, a Secretary and a Chief Financial
Officer. The Board may from time to time also elect one or more Vice-Presidents
in such gradations as the Board of Directors may determine, Assistant
Vice-Presidents, Assistant Secretaries, Assistant Treasurers and such other
officers and agents as it shall deem necessary, or it may delegate the authority
to appoint such officers and agents to an officer subject to the control of the
Board of Directors. Any number of offices may be held by the same person.
4.2. Unless otherwise provided in the resolution of election or
appointment, the officers of the Corporation shall hold office until their
successors are chosen and qualified or until their earlier resignation or
removal. Any officer may resign at any time by giving written notice to the
President or the Secretary. Unless otherwise stated in such notice of
resignation, the acceptance thereof shall not be necessary to make it effective;
and such resignation shall take effect at the time specified therein or, in the
absence of such specification, it shall take effect upon the receipt thereof.
Any officer, servant or agent of the Corporation may be removed at any time with
or without cause by the Board of Directors or by the officer having power to
appoint the successor of the person being removed. The removal of any officers,
servant or agent of the Corporation shall be without prejudice to his or her
contract rights, if any. Any vacancy occurring in any
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office of the Corporation may be filled by the Board of Directors or
otherwise as provided in this Article.
4.3. The officers of the Corporation shall receive such compensation
for their services as the Board of Directors may determine. The Board of
Directors may delegate its authority to determine compensation to a committee or
designated officers of the Corporation.
4.4. The duties and powers of the officers of the Corporation shall be
as provided in these Bylaws or as defined in the resolutions appointing them, or
shall be those duties and powers customarily exercised by corporate officers
holding such offices.
4.5. Unless otherwise specified by the Board of Directors, the
President of the Corporation shall be the Chief Executive Officer of the
Corporation. If a person other than the Chief Executive Officer, the President
shall have such powers and perform such duties as may be assigned from
time-to-time by the Board of Directors or by the Chief Executive Officer,
subject to the powers and control of the Board of Directors.
4.6. The Chief Executive Officer of the Corporation shall have general
supervision of the policies, business and operations of the Corporation. He or
she shall preside at all meetings of the stockholders and at meetings of the
Board of Directors in the absence of a Chairman or Vice-Chairman of the Board,
if any. The Chief Executive Officer shall have such other powers and duties as
are usually incident to the Chief Executive Officer of a corporation.
4.7. The Vice-Presidents, if any, shall perform such duties and have
such powers as the Board of Directors may from time to time prescribe by
standing or special resolution, or the Chief Executive Officer may from time to
time provide, subject to the powers and the control of the Board of Directors.
4.8. The Secretary of the Corporation or an Assistant Secretary, as
designated by the Chairman of the Board or other presiding officer, or another
person so designated, shall act as secretary and record the minutes of meetings
of the Board of Directors and committees thereof and of the stockholders. Unless
given by another authorized officer, the Secretary shall give, or cause to be
given, notices of all meetings of stockholders and Directors and of such
committees as directed by the Board of Directors. The Secretary shall have
charge of such books and papers as the Board of Directors may require. The
Secretary or any Assistant Secretary is authorized to certify copies of extracts
from minutes and of documents in the Secretary's charge and anyone may rely on
such certified copies to the same effect as if such copies were originals and
may rely upon any statement of fact concerning the Corporation certified by the
Secretary (or any Assistant Secretary). The Secretary shall have custody of the
corporate seal of the Corporation and shall have authority to affix the same to
any instrument requiring it and, when so affixed, it may be attested by the
Secretary's signature. The Board of Directors may give general or special
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his signature. The Secretary shall perform all acts
incident to the office of
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Secretary, subject to the control of the Board of Directors, the Chairman of
the Board or the Chief Executive Officer, under whose supervision the
Secretary shall be.
4.9. The Assistant Secretary, if there be any, or, if there be more
than one, the Assistant Secretaries in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors, the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time prescribe.
4.10. Unless the Board of Directors shall designate another officer,
the Treasurer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation, and may deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such banks, trust
companies or other depositories, as the Board of Directors may select or as may
be selected by an officer, employee or agent of the Corporation to whom such
power may from time to time be delegated by the Board of Directors. He shall
perform such other duties and have such other powers as may be prescribed by the
Board of Directors or the Chief Executive Officer, under whose supervision he
shall be. The Treasurer may act with the assistance of such Assistant
Treasurers, if any, or such other employees of the Company as he may reasonably
designate.
4.11. The Assistant Treasurer, if there be any, or, if there be more
than one, the Assistant Treasurers in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer, and shall perform such other duties and have such other powers as the
Board of Directors, the Chief Executive Officer, or the Treasurer may from time
to time prescribe.
4.12. Checks, notes, drafts, other commercial instruments, assignments,
guarantees of signatures and contracts (except as otherwise provided herein or
by law) shall be executed by the Chief Executive Officer, the President, any
Vice President or such officers or employees or agents as the Board of Directors
or any of such designated officers may direct.
4.13. The Chief Executive Officer, the President, any Vice President or
the Secretary may authorize any endorsement on behalf of the Corporation to be
made by such mechanical means or stamps as any of such officers may deem
appropriate.
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ARTICLE 5.
INDEMNIFICATION AND INSURANCE
5.1 DIRECTORS AND OFFICERS. In accordance with Article VII of
the Certificate of Incorporation of the Corporation, each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact:
(a) that he or she is or was a director or officer of the
Corporation, or
(b) that he or she, being at the time a director or officer of
the Corporation, is or was serving at the request of the Corporation as a
director, trustee, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, whether either in case
(a) or in case (b) the basis of such proceeding is alleged action or inaction
(x) in an official capacity as a director or officer of the Corporation, or as a
director, trustee, officer, employee or agent of such enterprise while so
serving as a director, trustee, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent not prohibited by
Section 145 of the Delaware General Corporation Law (or any successor provision
or provisions) as the same exists or may hereafter be amended. [The right to
indemnification conferred in this Section 5 shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the DGCL requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section 5.1 or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
5.2 AGENTS AND EMPLOYEES. The Corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification, and to the advancement of expenses, to any employee or agent of
the Corporation (or any person serving at the Corporation's request as a
director, trustee, officer, employee or agent of another enterprise) or to
persons who are or were a director, officer, employee or agent of any of the
Corporation's affiliates, predecessor or subsidiary corporations or of a
constituent corporation absorbed by the Corporation in a consolidation or merger
or who is or was serving at the request of such affiliate, predecessor or
subsidiary corporation or of such constituent corporation as a director,
officer, employee or agent of another enterprise, in each case as determined by
the Board of Directors to the fullest extent of the provisions of Article VII of
the Certificate of Incorporation of the Corporation, in
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cases of the indemnification and advancement of expenses of directors and
officers of the Corporation, or to any lesser extent (or greater extent, if
permitted by law) determined by the Board of Directors.
5.3. INDEMNIFICATION PROCEDURE; DETERMINATION OF RIGHT TO
INDEMNIFICATION.
(a) Promptly after receipt by the indemnitee of written notice
of the commencement of any proceeding, the indemnitee will, if a claim in
respect thereof is to be made against the Corporation in accordance herewith,
notify the Corporation of the commencement thereof. The omission so to notify
the Corporation (i) will relieve it from any liability which it may have to the
indemnitee hereunder only to the extent that the Corporation is able to
establish that its ability to avoid such liability was materially prejudiced by
such omission and (ii) will not relieve it from any liability which it may
otherwise have to the indemnitee.
(b) If a claim for indemnification under this Article 5 is not
paid in full by the Corporation within thirty days after it has been received in
writing by the Corporation, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
(c) The Corporation shall not be obligated to indemnify or
advance expenses to the indemnitee under this Article 5 in connection with a
proceeding (or part thereof) initiated or brought voluntarily by the indemnitee
(other than to enforce the rights to indemnification hereunder) unless the
initiation thereof was approved by the Board of Directors of the Corporation.
(d) In the case of a settlement of a proceeding by an
indemnitee, the payment of amounts and indemnification thereof shall be
approved, in advance, by the Corporation, which approval shall not be
unreasonably withheld, or by a court of competent jurisdiction.
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5.4. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, trustee, officer, employee or agent
of the Corporation or another enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
5.5. BINDING EFFECT; SUCCESSORS AND ASSIGNS. The indemnification
and advance of expenses provided by or granted pursuant to this Article 6 shall
continue as to a person who has ceased to be a Director or officer, and shall
inure to the benefit of the heirs, executors and administrators of such Director
or officer.
5.6. SEVERABILITY. In the event that any of the provisions of
this Article 5 (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions are severable and shall remain
enforceable to the full extent permitted by law.
5.7. RELATIONSHIP TO OTHER RIGHTS AND PROVISIONS CONCERNING
INDEMNIFICATION. The rights to indemnification and to the advancement of
expenses conferred in this Article 5 shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Certificate of Incorporation of the Corporation, agreement, vote of stockholders
or disinterested directors or otherwise.
ARTICLE 6.
STOCK CERTIFICATES
AND STOCK TRANSFERS
6.1. UNCERTIFICATED AND CERTIFICATED SHARES; FORM OF
CERTIFICATES. Effective at such time as the President or any Vice President or
the Treasurer of the Corporation designates in writing to the Corporate
Secretary and any transfer agents of the Corporation with respect to any class
of stock of the Corporation, the shares of such class shall be uncertificated
shares, provided that the foregoing shall not apply to shares represented by a
certificate until such certificate is surrendered to the Corporation and
provided further that upon request every holder of uncertificated shares shall
be entitled, to the extend provided in Section 158 of the Delaware General
Corporation Law, to have a certificate signed in the name of the Corporation (i)
by the President or a Vice President and (ii) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, of the Corporation,
certifying the number of shares owned by such stockholder in the Corporation.
6.2. 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 Chairman or Vice-Chairman of the Board of Directors, or
the President or a Vice-President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation
certifying the number of shares owned by him in the Corporation. Where a
certificate is countersigned (1) by a transfer agent other than the
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Corporation or its employee, or (2) by a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to
be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he or
it were such officer, transfer agent or registrar at the date of issue.
6.3. LOST CERTIFICATES. The Board of Directors may in its
discretion direct, or vest in the officers of the Corporation the power to
direct, that a new certificate or certificates be issued in place of any
certificate or certificates theretofore issued by the Corporation and alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require, or vest in the officers of the Corporation the power
to require, that the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed. The Corporation may refuse to issue a new certificate except as
ordered by the Court of Chancery of Delaware.
6.4. TRANSFERS OF STOCK. The Board of Directors may appoint, or
authorize any officer or officers to appoint, one or more transfer agents and
one or more registrars. If any certificate is countersigned (a) by a transfer
agent other than the Corporation or its employee, or (b) by a registrar other
than the Corporation or its employee, any signature on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue. The
Board of Directors may make such further rules and regulations as it may deem
expedient concerning the issue, transfer and registration of stock certificates
of the Corporation.
6.5. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
6.6. FIXING RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change,
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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, which date
shall be a permitted record date under the Delaware General Corporation Law
with respect to such meeting or action. 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.
6.7. REGISTERED STOCKHOLDERS. The Corporation shall be entitled
to recognize a person registered as the owner of shares on its books as being
the owner of such shares for the purpose of receiving dividends, voting those
shares, and being accorded all other rights and liabilities of an owner of
shares, and the Corporation shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware. Every stockholder shall furnish to
the Corporation his address, and the Corporation may rely for all purposes upon
the address of such stockholder so furnished to it. If any stockholder shall not
furnish the Corporation with his address, his address shall be presumed to be at
the registered office of the Corporation, in its care.
ARTICLE 7.
GENERAL PROVISIONS
7.1. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, may
be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the Certificate of Incorporation.
7.2. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
Directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interest of the
Corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
7.3. FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
7.4 CORPORATE SEAL. The corporate seal shall be in such form as the
Board of Directors may prescribe.
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7.5. VOTING OF STOCK IN OTHER CORPORATIONS. Any shares of stock or
other securities in any other corporation or organization, with respect to which
the Corporation may from time to time have the right to vote or to give
approvals, ratifications or consents may be represented and voted at any meeting
of security holders of such other corporation or organization, or approvals,
ratifications or consents may be given with respect thereto, by the Chief
Executive Officer of the Corporation or by the proxy or proxies appointed by the
Chief Executive Officer, or by any other person appointed by resolution of the
Board of Directors, of which resolution a certified copy under the seal of the
Corporation shall be conclusive evidence.
7.6. POSITION WITH CORPORATION NOT TO IMPOSE DUTY TO REFRAIN FROM
EXERCISING RIGHTS. No person who is an officer, Director or controlling
stockholder of the Corporation shall be deemed to be under any disability, by
reason of his status as such officer, Director or controlling stockholder, from
exercising as against the Corporation any rights or privileges whatsoever which
he may enjoy under the terms of any provision of any certificate of
incorporation, by-law, resolution or contract, in his personal capacity
(including his capacity as a fiduciary for another person or persons); and any
such officer, Director or controlling stockholder may exercise any such rights
or privileges as fully as if such person were not such officer, Director or
controlling stockholder.
ARTICLE 8.
AMENDMENTS
These Bylaws of the Corporation may be amended, altered, changed,
adopted and repealed by a vote of the majority of the Board of Directors then in
office at any regular or special meeting. The stockholders also shall have the
power to amend, alter, change, adopt and repeal the Bylaws of the Corporation at
any annual or special meeting pursuant to the requirements of the Certificate of
Incorporation.
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