EXHIBIT 3.1
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BIOTRANSPLANT INCORPORATED
Incorporated under the laws
of the State of Delaware
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AMENDED AND RESTATED
BY-LAWS
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As adopted on December 5, 2001
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BIOTRANSPLANT INCORPORATED
AMENDED AND RESTATED BY-LAWS
INDEX
ARTICLE I Offices ...................................................................................1
SECTION 1. Registered Office..................................................................1
SECTION 2. Other Offices......................................................................1
ARTICLE II Stockholders................................................................................1
SECTION 1. Annual Meetings....................................................................1
SECTION 2. Special Meetings...................................................................1
SECTION 3. Notice of Meetings.................................................................1
SECTION 4. Quorum.............................................................................2
SECTION 5. Adjournments.......................................................................2
SECTION 6. Conduct of Meetings................................................................2
(a) Chairman of Meeting................................................................2
(b) Rules, regulations and Procedures..................................................3
(c) Closing of Polls...................................................................3
(d) Inspection.........................................................................3
(e) Order of Business..................................................................3
SECTION 7. Voting.............................................................................4
SECTION 8. Nomination of Directors............................................................4
SECTION 9. Notice of Business at Annual Meetings..............................................6
SECTION 10. List of Stockholders...............................................................7
SECTION 11. No Action by Written Consent in Lieu of a Meeting..................................7
ARTICLE III Board of Directors..........................................................................7
SECTION 1. General Powers.....................................................................7
SECTION 2. Number and Term of Office..........................................................7
SECTION 3. Election of Directors..............................................................7
SECTION 4. Resignation, Removal and Vacancies.................................................8
SECTION 5. Meetings...........................................................................8
(a) Regular Meetings...................................................................8
(b) Special Meetings...................................................................8
(c) Notice of Meetings.................................................................8
(d) Place of Meetings..................................................................8
(e) Quorum and Manner of Acting........................................................9
(f) Organization.......................................................................9
SECTION 6. Directors' Consent In Lieu of Meeting..............................................9
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SECTION 7. Action by Means of Conference Telephone or Similar
Communications Equipment............................................................9
SECTION 8. Committees..........................................................................9
SECTION 9. Compensation of Directors..........................................................10
ARTICLE IV Officers ...................................................................................10
SECTION 1. Executive Officers.................................................................10
SECTION 2. Authority and Duties...............................................................10
SECTION 3. Other Officers.....................................................................10
SECTION 4. Term of Office, Resignation and Removal............................................10
SECTION 5. Vacancies..........................................................................11
SECTION 6. The Chairman of the Board..........................................................11
SECTION 7. The President; Chief Executive Officer.............................................11
SECTION 8. The Treasurer......................................................................11
SECTION 9. The Secretary......................................................................11
SECTION 10. Salaries...........................................................................12
ARTICLE V Contracts, Checks, Drafts, Bank Accounts, Etc...............................................12
SECTION 1. Execution of Documents.............................................................12
SECTION 2. Deposits...........................................................................12
SECTION 3. Proxies in Respect of Stock or Other Securities of Other Corporations..............12
ARTICLE VI Shares and Their Transfer; Fixing Record Date...............................................13
SECTION 1. Issuance of Stock..................................................................13
SECTION 2. Certificates for Shares............................................................13
SECTION 3. Record.............................................................................13
SECTION 4. Transfers..........................................................................13
SECTION 5. Addresses of Stockholders..........................................................14
SECTION 6. Lost, Destroyed and Mutilated Certificates.........................................14
SECTION 7. Regulations........................................................................14
SECTION 8. Fixing Date for Determination of Stockholders of Record............................14
ARTICLE VII Seal........................................................................................15
ARTICLE VIII Fiscal Year.................................................................................15
ARTICLE IX Indemnification and Insurance...............................................................15
SECTION 1. Indemnification....................................................................15
SECTION 2. Insurance..........................................................................16
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ARTICLE X General Provisions..........................................................................17
SECTION 1. Transactions with Interested Parties...............................................17
SECTION 2. Severability.......................................................................17
SECTION 3. Pronouns...........................................................................17
ARTICLE XI Amendments..................................................................................17
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BIOTRANSPLANT INCORPORATED
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of BIOTRANSPLANT
INCORPORATED (the "Corporation") in the State of Delaware shall be at 0000
Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle, and the registered
agent in charge thereof shall be Corporation Trust Company.
SECTION 2. OTHER OFFICES. The Corporation may also have an office or
offices at other place or places within or without the State of Delaware.
ARTICLE II
STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. The annual meeting of the stockholders for
the election of directors, and for the transaction of such other business as may
properly come before the meeting, shall be held at such place, date and hour as
shall be fixed by the Board of Directors (the "Board"), the Chairman of the
Board, if any, the Chief Executive Officer, if any, or the President and
designated in the notice or waiver of notice thereof.
SECTION 2. SPECIAL MEETINGS. A special meeting of the stockholders for
any purpose may be called by the Board, the Chairman of the Board, if any, the
Chief Executive Officer, if any, the President, the record holders of at least
20% of the shares of stock of the Corporation issued and outstanding entitled to
vote at such meeting or the Secretary, to be held at such place, date and hour
as shall be designated in the notice or waiver of notice thereof. Business
transacted at any special meeting of stockholders shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting.
SECTION 3. NOTICE OF MEETINGS. Except as otherwise required by statute
or by the Certificate of Incorporation, as amended or restated from time to time
(the "Certificate of Incorporation"), or these By-laws, notice of each annual or
special meeting of the stockholders shall be given to each stockholder of record
entitled to vote at such meeting not less than 10 nor more than 60 days before
the day on which the meeting is to be held, by delivering written notice thereof
to him personally, or by mailing a copy of such notice, postage prepaid,
directly to him at his address as it appears in the records of the Corporation,
or by transmitting such notice to him at such address by telegraph, cable or
other telephonic transmission. In addition, without limiting the manner by which
notice otherwise may be given to stockholders, any notice shall be effective if
given by a form of electronic transmission consented to (in a manner consistent
with the General Corporation Law of the State of Delaware) by the stockholder to
whom the notice is given. Every such notice shall state the place and the date
and hour of the meeting, and the means of remote communications, if any, by
which stockholders and proxyholders may be deemed to be present in person and
vote at such meeting. The notice of a special meeting shall state, in addition,
the purpose or purposes for which the meeting is called. If notice is given by
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mail, such notice shall be deemed given when deposited in the United States
mail, postage pre-paid directed to the stockholder at such stockholder's address
as it appears on the records of the corporation. If notice is given by
electronic transmission, such notice shall be deemed given at the time specified
in Section 232 of the General Corporation Law of the State of Delaware. Notice
of any meeting of stockholders shall not be required to be given to any
stockholder who shall attend such meeting in person or by proxy, or who shall,
in person or by attorney thereunto authorized, waive such notice in writing,
either before or after such meeting. Except as otherwise required by the
Delaware Statute or these By-laws, neither the business to be transacted at, nor
the purpose of, any meeting of the stockholders need be specified in any such
waiver of notice.
SECTION 4. QUORUM. At each meeting of the stockholders, except where
otherwise provided by law or by the Certificate of Incorporation or these
By-laws, the holders of a majority of the issued and outstanding shares of stock
of the Corporation entitled to vote at such meeting, present in person, present
by means of remote communication in a manner, if any, authorized by the Board in
its sole discretion, or represented by proxy, shall constitute a quorum for the
transaction of business. A quorum, once established at a meeting, shall not be
broken by the withdrawal of enough votes to leave less than a quorum.
SECTION 5. ADJOURNMENTS. Any meeting of stockholders may be adjourned
from time to time to any other place at which a meeting of stockholders may be
held under these By-laws by the stockholders present or represented at the
meeting and entitled to vote, although less than a quorum, or, if no stockholder
is present, by any officer entitled to preside at or to act as secretary of such
meeting. It shall not be necessary to notify any stockholder of any adjournment
of less than 30 days if the time and place of the adjourned meeting, and the
means of remote communication, if any, by which stockholders and proxyholders
may be deemed to be present in person and vote at such adjourned meeting, are
announced at the meeting. At any adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been transacted at the
original meeting.
SECTION 6. CONDUCT OF MEETINGS.
(a) Chairman of Meeting. At each meeting of the stockholders, one of
the following shall act as chairman of the meeting and preside thereat, in the
following order of precedence:
(i) the Chairman of the Board, if any;
(ii) the Chief Executive Officer, if any,
(iii) the President or;
(iv) any other officer of the Corporation designated by
the Board to act as chairman of such meeting and to
preside thereat if the Chairman of the Board or Chief
Executive Officer, if any, or the President shall be
absent from such meeting.
The Secretary, or if he shall be presiding over such meeting in
accordance with the provisions of this Section 6 or absent from such meeting,
the person (who shall be an Assistant
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Secretary, if an Assistant Secretary has been appointed and is present) whom the
chairman of such meeting shall appoint, shall act as secretary of such meeting
and keep the minutes thereof.
(b) RULES, REGULATIONS AND PROCEDURES. The Board of Directors of the
Corporation may adopt by resolution such rules, regulations and procedures for
the conduct of any meeting of stockholders of the Corporation as it shall deem
appropriate including, without limitation, such guidelines and procedures as it
may deem appropriate regarding the participation by means of remote
communication of stockholders and proxyholders not physically present at a
meeting. Except to the extent inconsistent with such rules, regulations and
procedures as adopted by the Board of Directors, the chairman of any meeting of
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: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) 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 persons as shall be determined; (iv)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (v) limitations on the time allotted to questions or comments by
participants. Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of stockholders shall not be required to
be held in accordance with the rules of parliamentary procedure.
(c) CLOSING OF POLLS. The chairman of the meeting shall announce at the
meeting when the polls for each matter to be voted upon at the meeting will be
opened and closed. If no announcement is made, the polls shall be deemed to have
opened when the meeting is convened and closed upon the final adjournment of the
meeting. After the polls close, no ballots, proxies or votes or any revocations
or changes thereto may be accepted.
(d) INSPECTION. In advance of any meeting of stockholders, the Board of
Directors, the Chairman of the Board, if any, the Chief Executive Officer, if
any, or the President shall appoint one or more inspectors to serve at any
meeting of the stockholders. Any inspector may be removed, and a new inspector
or inspectors appointed, by the Board at any time. Such inspectors shall decide
upon the qualifications of voters, accept and count the votes for and against
the question, respectively, declare the results of such vote, and subscribe and
deliver to the secretary of the meeting a certificate stating the number of
shares of stock issued and outstanding and entitled to vote thereon and the
number of shares voted for and against the question, respectively. The
inspectors need not be stockholders of the Corporation, and any director or
officer of the Corporation may be an inspector on any question other than a vote
for or against his election to any position with the Corporation or on any other
question in which he may be directly interested. Before acting as herein
provided, each inspector shall subscribe an oath faithfully to execute the
duties of an inspector with strict impartiality and according to the best of his
ability.
(e) ORDER OF BUSINESS. The order of business at each meeting of the
stockholders shall be determined by the chairman of such meeting.
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SECTION 7. VOTING. Except as otherwise provided by law or by the
Certificate of Incorporation or these By-laws, at each meeting of the
stockholders, every stockholder of the Corporation shall be entitled to one vote
in person or by proxy for each share of stock of the Corporation held by him and
registered in his name on the books of the Corporation on the date fixed
pursuant to Section 8 of Article VI as the record date for the determination of
stockholders entitled to vote at such meeting. Persons holding stock in a
fiduciary capacity shall be entitled to vote the shares so held. Persons whose
stock is pledged shall be entitled to vote, unless in the transfer by the
pledgor on the books of the Corporation, he has expressly empowered the pledgee
to vote thereon, in which case only the pledgee or his proxy may represent such
stock and vote thereon. If shares or other securities having voting power stand
in the record of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety or
otherwise, or if two or more persons have the same fiduciary relationship
respecting the same shares, unless the Secretary shall be given written notice
to the contrary and shall be furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided, their
acts with respect to voting shall have the following effect:
(a) if only one votes, his act binds all;
(b) if more than one votes, the act of the majority so voting binds
all; and
(c) if more than one votes, but the vote is evenly split on any
particular matter, such shares shall be voted in the manner provided by law.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even-split for the purposes of this Section 7 shall be
a majority or even-split in interest. The Corporation shall not vote directly or
indirectly any share of its own capital stock. Any vote of stock may be given by
the stockholder entitled thereto in person (including by means of remote
communications, if any, by which stockholders may be deemed to be present in
person and vote at such meeting) or by his proxy appointed by an instrument in
writing, subscribed by such stockholder or by his attorney thereunto authorized,
delivered (including by electronic transmission) to the Secretary of the
Corporation; provided, however, that no proxy shall be voted after three years
from its date, unless said proxy provides for a longer period. At all meetings
of the stockholders at which a quorum shall be present, all matters other than
the election of directors shall be decided by the vote of a majority in interest
of the stockholders present in person or by proxy at such meeting and voting on
such matter, except when a different vote is required by law, the Certificate of
Incorporation or these By-laws. When a quorum is present at any meeting, any
election by stockholders of directors shall be determined in accordance with
Section 3 of Article III of these By-laws.
SECTION 8. NOMINATION OF DIRECTORS.
(a) Except for (i) any directors entitled to be elected by the holders
of preferred stock or any other securities of the Corporation (other than common
stock) and (ii) any directors elected in accordance with Section 4 of Article
III hereof by the Board of Directors to fill a vacancy, only persons who are
nominated in accordance with the procedures in this Section 8 shall be eligible
for election as directors. Nomination for election to the Board of Directors of
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the Corporation at a meeting of stockholders may be made (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
Corporation who (x) complies with the notice procedures set forth in paragraph
(b) of this Section 8 and (y) is a stockholder of record on the date of the
giving of such notice and on the record date for the determination of
stockholders entitled to vote at such meeting.
(b) To be timely, a stockholder's notice must be received by the
Secretary at the principal executive offices of the Corporation as follows: (x)
in the case of an election of directors at an annual meeting of stockholders,
not less than 60 days nor more than 90 days prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is advanced by more than 20 days, or delayed by
more than 60 days, from the first anniversary of the preceding year's annual
meeting, a stockholder's notice must be so received not earlier than the
ninetieth day prior to such annual meeting and not later than the close of
business on the later of (A) the sixtieth day prior to such annual meeting and
(B) the tenth day following the day on which notice of the date of such annual
meeting was mailed or public disclosure of the date of such annual meeting was
made, whichever first occurs; or (y) in the case of an election of directors at
a special meeting of stockholders, not earlier than the ninetieth day prior to
such special meeting and not later than the close of business on the later of
(i) the sixtieth day prior to such special meeting and (ii) the tenth day
following the day on which notice of the date of such special meeting was mailed
or public disclosure of the date of such special meeting was made, whichever
first occurs.
The stockholder's notice to the Secretary shall set forth: (a) as to
each proposed nominee (i) such person's name, age, business address and, if
known, residence address, (ii) such person's principal occupation or employment,
(iii) the class and number of shares of stock of the Corporation which are
beneficially owned by such person, and (iv) any other information concerning
such person that must be disclosed as to nominees in proxy solicitations
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended; (b) as to the stockholder giving the notice (i) such stockholder's name
and address, as they appear on the Corporation's books, (ii) the class and
number of shares of stock of the Corporation which are owned, beneficially and
of record, by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder and (iv) a representation that such
stockholder intends to appear in person or by proxy at the meeting to nominate
the person(s) named in its notice; and (c) as to the beneficial owner, if any,
on whose behalf the nomination is being made (i) such beneficial owner's name
and address, (ii) the class and number of shares of stock of the Corporation
which are beneficially owned by such beneficial owner, and (iii) a description
of all arrangements or understandings between such beneficial owner and each
proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made. In addition, to be
effective, the stockholder's notice must be accompanied by the written consent
of the proposed nominee to serve as a director if elected. The Corporation may
require any proposed nominee to furnish such other information as may reasonably
be required to determine the eligibility of such proposed nominee to serve as a
director of the Corporation.
(c) The chairman of any meeting shall, if the facts warrant, determine
that a nomination was not made in accordance with the provisions of this Section
8, and if the
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chairman should so determine, the chairman shall so declare to the meeting and
the defective nomination shall be disregarded.
(d) Except as otherwise required by law, nothing in this Section 8
shall obligate the Corporation or the Board of Directors to include in any proxy
statement or other stockholder communication distributed on behalf of the
Corporation or the Board of Directors information with respect to any nominee
for director submitted by a stockholder.
SECTION 9. NOTICE OF BUSINESS AT ANNUAL MEETINGS.
(a) At any annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (ii) otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or (iii) properly brought before the
meeting by a stockholder. For business to be properly brought before an annual
meeting by a stockholder (i) if such business relates to the election of
directors of the Corporation, the procedures in Section 8 of this Article I must
be complied with and (ii) if such business relates to any other matter, the
stockholder must (x) have given timely notice thereof in writing to the
Secretary in accordance with the procedures set forth in Section 10 (b) and (y)
be a stockholder of record on the date of the giving of such notice and on the
record date for the determination of stockholders entitled to vote at such
annual meeting.
(b) To be timely, a stockholder's notice must be received by the
Secretary at the principal executive offices of the Corporation not less than 60
days nor more than 90 days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is advanced by more than 20 days, or delayed by more than 60
days, from the first anniversary of the preceding year's annual meeting, a
stockholder's notice must be so received not earlier than the ninetieth day
prior to such annual meeting and not later than the close of business on the
later of (A) the sixtieth day prior to such annual meeting and (B) the tenth day
following the day on which notice of the date of such annual meeting was mailed
or public disclosure of the date of such annual meeting was made, whichever
first occurs.
The stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and address, as they appear on the Corporation's books, of the stockholder
proposing such business, and the name and address of the beneficial owner, if
any, on whose behalf the proposal is made, (iii) the class and number of shares
of stock of the Corporation which are owned, of record and beneficially, by the
stockholder and beneficial owner, if any, (iv) a description of all arrangements
or understandings between such stockholder or such beneficial owner, if any, and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of the
stockholder or such beneficial owner, if any, in such business, and (v) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting. Notwithstanding
anything in these By-laws to the contrary, no business shall be conducted at any
annual meeting of stockholders except in accordance with the procedures set
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forth in this Section 9; provided that any stockholder proposal which complies
with Rule 14a-8 of the proxy rules (or any successor provision) promulgated
under the Securities Exchange Act of 1934, as amended, and is to be included in
the Corporation's proxy statement for an annual meeting of stockholders shall be
deemed to comply with the requirements of this Section 9.
The chairman of any meeting shall, if the facts warrant, determine that
business was not properly brought before the meeting in accordance with the
provisions of this Section 9, and if the chairman should so determine, the
chairman shall so declare to the meeting and such business shall not be brought
before the meeting.
SECTION 10. LIST OF STOCKHOLDERS. It shall be the duty of the Secretary
or other officer of the Corporation who shall have charge of its stock ledger to
prepare and make, at least 10 days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, 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 any such meeting,
during ordinary business hours, for a period of at least 10 days prior to such
meeting: (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with notice of the
meeting, or (ii) during ordinary business hours, at the principal place of
business of the Corporation. Such list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
SECTION 11. NO ACTION BY WRITTEN CONSENT IN LIEU OF A MEETING.
Stockholders of the Corporation may not take any action by written consent in
lieu of a meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business, property and affairs of the
Corporation shall be managed by or under the direction of the Board, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate of Incorporation directed or
required to be exercised or done by the stockholders. In the event of a vacancy
on the Board of Directors, the remaining directors, except as otherwise provided
by law, may exercise the powers of the full board until the vacancy is filled.
SECTION 2. NUMBER AND TERM OF OFFICE. Except as may be otherwise
expressly provided by the Certificate of Incorporation, the number of directors
shall be three or such other number as shall be fixed from time to time by the
Board. Directors need not be stockholders. Each director shall hold office until
his successor is elected and qualified, or until his earlier death or
resignation or removal in the manner hereinafter provided.
SECTION 3. ELECTION OF DIRECTORS. At each meeting of the stockholders
for the election of directors at which a quorum is present, the persons
receiving the greatest number of votes, up to the number of directors to be
elected, of the stockholders present in person or by proxy and entitled to vote
thereon shall be the directors; provided, that no stockholder shall be allowed
to cumulate his votes.
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SECTION 4. RESIGNATION, Removal and Vacancies. Any director may resign
at any time by giving written notice to the Board, the Chairman of the Board, if
any, the Chief Executive Officer, if any, the President or the Secretary. Such
resignation shall take effect at the time specified therein or, if the time be
not specified, upon receipt thereof; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Any director or the entire Board may be removed, with or without cause,
at any time by the affirmative vote of the holders of a majority of the shares
then entitled to vote at an election of directors.
Vacancies occurring in the Board for any reason, including a vacancy
resulting from an enlargement of the Board, shall only be filled by vote of a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director or by the directors' written consent pursuant to Section
6 of this Article III. Such vacancies may be filled by vote of a majority of the
directors then in office, whether or not less than a quorum. A director elected
to fill a vacancy shall be elected to hold office until the next election of
directors, subject to the election and qualification of a successor and to such
directors, subject to the election and qualification of a successor and to such
director's earlier death, resignation or removal.
SECTION 5. MEETINGS.
(a) REGULAR MEETINGS. Regular meetings of the Board may be held without
notice at such time and place as shall be determined from time to time by the
Board; provided that any director who is absent when such a determination is
made shall be given notice of the determination. A regular meeting of the Board
may be held without notice immediately after and at the same place as the annual
meeting of stockholders.
(b) SPECIAL MEETINGS. Special meetings of the Board may be held at any
time and place designated in a call by the Chairman of the Board, if any, the
Chief Executive Officer, if any, the President, two or more directors, or by one
director in the event that there is only a single director in office.
(c) NOTICE OF MEETINGS. The Secretary or the officer or one of the
directors calling the meeting shall give notice to each director of each
meeting, including the time, place and purpose of such meeting. Notice of each
such meeting shall be duly given if (i) mailed to each director, addressed to
him at his residence or usual place of business, at least 72 hours in advance of
the meeting (ii) sent to him at such place by telegraph, cable, or electronic
mail, or delivering written notice by hand, to such director's last known
business, home or electronic mail address at least 48 hours in advance of
meeting, or (iii) delivered personally or by telephone not later than 24 hours
in advance of the meeting, but notice need not be given to any director who
shall attend such meeting. A written waiver of notice, signed by the person
entitled thereto, whether before or after the time of the meeting stated
therein, shall be deemed equivalent to notice. A notice or waiver of a meeting
of the Board need not specify the purposes of the meeting.
(d) PLACE OF MEETINGS. The Board may hold its meetings at such place or
places within or without the State of Delaware as the Board may from time to
time determine, or as shall be designated in the respective notices or waivers
of notice thereof.
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(e) QUORUM AND MANNER OF ACTING. A majority of the total number of
directors shall be present in person at any meeting of the Board in order to
constitute a quorum for the transaction of business at such meeting, and the
vote of a majority of those directors present at any such meeting at which a
quorum is present shall be necessary for the passage of any resolution or act of
the Board, except as otherwise expressly required by law, the Certificate of
Incorporation or these By-laws. In the event one or more directors shall be
disqualified to vote at any meeting, then the required quorum shall be reduced
by one for each director so disqualified, provided that in no case shall less
than one third of the number of directors fixed pursuant to Section 2 of this
Article III constitute a quorum. In the absence of a quorum for any such
meeting, a majority of the directors present thereat may adjourn such meeting
from time to time without further notice other than announcement at the meeting,
until a quorum shall be present.
(f) ORGANIZATION. At each meeting of the Board, one of the following
shall act as chairman of the meeting and preside, in the following order of
precedence:
(i) the Chairman of the Board, if any;
(ii) the Chief Executive Officer, if any,
(iii) the President (if a director); or
(iv) any director chosen by a majority of the directors
present.
The Secretary or, in the case of his absence, any person (who shall be
an Assistant Secretary, if an Assistant Secretary has been appointed and is
present) whom the chairman of the meeting shall appoint shall act as secretary
of such meeting and keep the minutes thereof.
SECTION 6. DIRECTORS' CONSENT IN LIEU OF MEETING. Any action required
or permitted to be taken at any meeting of the Board or any committee thereof
may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by all
the directors on the Board or committee, as the case may be, and such consent is
filed with the minutes of the proceedings of the Board or committee, as the case
may be.
SECTION 7. ACTION BY MEANS OF CONFERENCE TELEPHONE OR SIMILAR
COMMUNICATIONS EQUIPMENT. Any one or more members of the Board may participate
in a meeting of the Board by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
SECTION 8. COMMITTEES. The Board may designate one or more committees,
each consisting of at least one director of the Corporation, which to the extent
provided in such resolution, except as otherwise provided by law, shall have and
may exercise the powers 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, such committee or committees to have
such name or names as may be determined from time to time by resolution adopted
by the Board. Each such committee shall keep minutes and make such reports as
the Board may from time to time request. A majority of all the members of any
such committee may
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determine its action and fix the time and place of its meetings, unless the
Board shall otherwise provide. The Board shall have the power to change the
members of any such committee at any time, either with or without cause, to fill
vacancies and to discharge any such committee, either with or without cause, at
any time.
SECTION 9. COMPENSATION OF DIRECTORS. Directors may be paid such
compensation for their services and such reimbursement for expenses of
attendance at meetings as the Board may from time to time determine. No such
payment shall preclude any director from serving the Corporation or any of its
parent or subsidiary corporations in any other capacity and receiving
compensation for such service.
ARTICLE IV
OFFICERS
SECTION 1. EXECUTIVE OFFICERS. The executive officers of the
Corporation shall be a President, a Treasurer and a Secretary and may include a
Chairman of the Board and such other officers as the Board may appoint pursuant
to Section 3 of this Article IV specifically designated as executive officers of
the Corporation. No officer need be a stockholder. Any two or more offices may
be held by the same person.
SECTION 2. AUTHORITY AND DUTIES. All offices, as between themselves and
the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided in these By-laws or, to the
extent so provided, by the Board.
SECTION 3. OTHER OFFICERS. The Corporation may have such other
officers, employees and agents as the Board may deem necessary, including one or
more Vice Presidents, one or more Assistant Secretaries and one or more
Assistant Treasurers, each of whom shall hold office for such period, have such
authority, and perform such duties as the Board, the Chairman of the Board, if
any, or the President may from time to time determine. The Board may delegate to
any executive officer the power to appoint or remove any such officers,
employees and agents.
SECTION 4. TERM OF OFFICE, RESIGNATION AND REMOVAL. Subject to the
provisions of Section 3 of this Article IV, all officers shall be elected or
appointed by the Board and shall hold office for such term as may be prescribed
by the Board. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-laws, each officer shall hold office until his
successor has been elected or appointed and qualified or until his earlier death
or resignation or removal in the manner hereinafter provided. The Board may
require any officer to give security for the faithful performance of his duties.
Any officer may resign at any time by giving written notice to the
Board, the Chairman of the Board, if any, the President or the Secretary. Such
resignation shall take effect at the time specified therein or, if the time be
not specified, at the time it is accepted by action of the Board. Except as
aforesaid, the acceptance of such resignation shall not be necessary to make it
effective.
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Each officer, employee and agent shall be subject to removal at any
time by a vote of a majority of the entire number of directors then in office,
or by any executive officer to whom the Board has delegated the power to remove
such officer, employee or agent, with or without cause.
Except as the Board may otherwise determine, no officer who resigns or
is removed shall have any right to any compensation as an officer for any period
following such officer's resignation or removal, or any right to damages on
account of such removal, whether such officer's compensation by the month or by
the year or otherwise, unless such compensation is expressly provided in a duly
authorized written agreement with the Corporation.
SECTION 5. VACANCIES. If the office of President, Treasurer or
Secretary becomes vacant for any reason, the Board shall fill such vacancy, and
if any other office becomes vacant, the Board or any executive officer to whom
the Board has delegated such power may fill such vacancy. Unless otherwise
provided, upon such appointment or election or unless reappointed or reelected,
any officer appointed or elected to fill any vacancy shall serve only until such
time as the unexpired term of his predecessor shall have expired and until a
successor is elected and qualified, or until such officer's earlier death,
resignation or removal.
SECTION 6. THE CHAIRMAN OF THE BOARD. The Board may appoint from its
members a Chairman of the Board. If there shall be a Chairman of the Board, he
shall preside at meetings of the Board and of the stockholders at which he is
present, and shall give counsel and advice to the Board and the officers of the
Corporation on all subjects concerning the welfare of the Corporation and the
conduct of its business. He shall perform such other duties as the Board may
from time to time determine.
SECTION 7. THE PRESIDENT; CHIEF EXECUTIVE OFFICER. Unless the Board of
Directors has designated the Chairman of the Board or another person as the
Corporation's Chief Executive Officer, the President shall be the Chief
Executive Officer of the Corporation. The Chief Executive Officer shall have
general charge and supervision of the business of the Corporation subject to the
direction of the Board. The President shall perform such other duties and shall
have such other powers as the Board and the Chief Executive Officer (if the
Chairman of the Board or another person is serving in such position) may from
time to time prescribe.
SECTION 8. THE TREASURER. The Treasurer shall have the care and custody
of the corporate funds and other valuable effects, including securities, and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the Chairman of the Board, if any, the
President and the directors, at regular meetings of the Board, or whenever they
may require it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation, and shall perform all other duties
incident to the office of Treasurer and such other duties as from time to time
may be assigned to him by the Chairman of the Board, if any, the President or
the Board.
SECTION 9. THE SECRETARY. The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of the
stockholders and shall record all votes and the
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minutes of all proceedings in a book to be kept for that purpose. He shall give,
or cause to be given, notice of all meetings of the stockholders and of the
Board. He shall keep in safe custody the seal of the Corporation and affix the
same to any duly authorized instrument requiring it and, when so affixed, it
shall be attested by his signature or by the signature of the Treasurer, an
Assistant Treasurer or an Assistant Secretary. He shall keep in safe custody the
certificate books and stockholder records and such other books and records as
the Board may direct and shall perform all other duties incident to the office
of Secretary and such other duties as from time to time may be assigned to him
by the Chairman of the Board, if any, the President or the Board.
In the absence of the Secretary at any meeting of stockholders or
directors, the chairman of the meeting shall designate a temporary secretary to
keep a record of the meeting.
SECTION 10. SALARIES. Officers of the Corporation shall be entitled to
such salaries, compensation or reimbursement as shall be fixed or allowed from
time to time by the Board.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. EXECUTION OF DOCUMENTS. The Board shall designate the
officers, employees and agents of the Corporation who shall have power to
execute and deliver deeds, contracts, mortgages, bonds, debentures, checks,
drafts and other orders for the payment of money and other documents for and in
the name of the Corporation (including the power to affix the seal of the
Corporation and to attest thereto), and may authorize such officers, employees
and agents to delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation; and,
unless so designated or expressly authorized by these By-laws, no officer,
employee or agent shall have any power or authority to bind the Corporation by
any contract or engagement, to pledge its credit or to render it liable
pecuniarily for any purpose or to any amount.
SECTION 2. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
or otherwise as the Board, the Treasurer or any other officer of the Corporation
to whom power in this respect shall have been given by the Board, shall select.
SECTION 3. PROXIES IN RESPECT OF STOCK OR OTHER SECURITIES OF OTHER
CORPORATIONS. The Board shall designate the officers of the Corporation who
shall have authority from time to time to appoint an agent or agents of the
Corporation to exercise in the name and on behalf of the Corporation the powers
and rights which the Corporation may have as the holder of stock or other
securities in any other corporation, and to vote or consent in respect of such
stock or securities. Such designated officers may instruct the person or persons
so appointed as to the manner of exercising such powers and rights, and such
designated officers may execute or cause to be executed in the name and on
behalf of the Corporation and under its corporate seal or otherwise, such
written proxies, powers of attorney or other instruments as they may deem
necessary or proper in order that the Corporation may exercise its powers and
rights.
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ARTICLE VI
SHARES AND THEIR TRANSFER; FIXING RECORD DATE
SECTION 1. ISSUANCE OF STOCK. Unless otherwise voted by the
stockholders and subject to the provisions of the Certificate of Incorporation,
the whole or any part of any unissued balance of the authorized capital stock of
the corporation or the whole or any part of any shares of the authorized capital
stock of the Corporation held in the corporation's treasury may be issued, sold,
transferred or otherwise disposed of by vote of the Board in such manner, for
such lawful consideration and on such terms as the Board may determine.
SECTION 2. CERTIFICATES FOR SHARES. Every owner of stock of the
Corporation shall be entitled to have a certificate certifying the number and
class or series of shares owned by him in the Corporation, which shall be in
such form as shall be prescribed by the Board. Certificates shall be numbered
and issued in consecutive order and shall be signed by, or in the name of, the
Corporation by the Chairman of the Board, if any, the President or any Vice
President and by the Treasurer (or an Assistant Treasurer) or the Secretary (or
an Assistant Secretary). Any or all of the signatures on the certificate may be
a facsimile. In case any officer or officers who shall have signed any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate had not ceased to be such officer or officers of the Corporation.
Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, these
By-laws, applicable securities laws or any agreement among any number of
stockholders or among such holders and the Corporation shall have conspicuously
noted on the front or back of the certificate either the full text of the
restriction or a statement of the existence of such restriction.
SECTION 3. RECORD. A record in one or more counterparts shall be kept
of the name of the person, firm or corporation owning the shares represented by
each certificate for stock of the Corporation issued, the number of shares
represented by each such certificate, the date thereof and, in the case of
cancellation, the date of cancellation. Except as otherwise expressly required
by law, the person in whose name shares of stock stand on the stock record of
the Corporation shall be deemed the owner thereof for all purposes as regards
the Corporation.
SECTION 4. TRANSFERS. Except as otherwise established by rules and
regulations adopted by the Board, and subject to applicable law, shares of stock
may be transferred on the books of the Corporation by the surrender to the
Corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or the authenticity of
signature as the Corporation or its transfer agent may reasonably require.
Except as may be otherwise required by law, by the Certificate of Incorporation
or by these By-laws, the Corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to vote
13
with respect to such stock, regardless of any transfer, pledge or other
disposition of such stock until the shares have been transferred on the books of
the Corporation in accordance with the requirements of these By-laws.
SECTION 5. ADDRESSES OF STOCKHOLDERS. Each stockholder shall designate
to the Secretary an address at which notices of meetings and all other corporate
notices may be served or mailed to him, and, if any stockholder shall fail to
designate such address, corporate notices may be served upon him by mail
directed to him at his post office address, if any, as the same appears on the
share record books of the Corporation or at his last known post office address.
SECTION 6. LOST, DESTROYED AND MUTILATED CERTIFICATES. The holder of
any shares of the Corporation shall immediately notify the Corporation of any
loss, destruction or mutilation of the certificate therefor, and the Board may,
in its discretion, cause to be issued to him a new certificate or certificates
for shares, upon the surrender of the mutilated certificates or, in the case of
loss or destruction of the certificate, upon satisfactory proof of such loss or
destruction, and the Board may, in its discretion, require the owner of the lost
or destroyed certificate or his legal representative to give the Corporation a
bond in such sum and with such surety or sureties as it may direct to indemnify
the Corporation or any transfer agent or registrar against any claim that may be
made against it on account of the alleged loss or destruction of any such
certificate.
SECTION 7. REGULATIONS. The Board may make such rules and regulations
as it may deem expedient, not inconsistent with these By-laws, concerning the
issue, transfer and registration of certificates for stock of the Corporation.
SECTION 8. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board, and which record date shall be not more than 60 nor less than 10
days before the date of such meeting. If no record date is fixed by the Board,
the record date for determining stockholders entitled to notice of or to vote at
a meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, the Board may fix a new record date for the adjourned
meeting.
(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
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ARTICLE VII
SEAL
The Board may provide a corporate seal, which shall in the form of a
circle and shall bear the full name of the Corporation and the words and figures
"Corporate Seal -- 1990 Delaware."
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year unless
otherwise determined by the Board.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
SECTION 1. Indemnification.
(a) As provided in the Certificate of Incorporation, to the fullest
extent permitted by the Delaware Statute, a director of this Corporation shall
not be liable to the Corporation or its stockholders for breach of fiduciary
duty as a director.
(b) Without limitation of any provision eliminating or limiting the
liability of a director pursuant to the Delaware Statute, any person who was or
is made a party or is threatened to be made a party to or is otherwise involved
in any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official or in any other
capacity while holding such office, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware Statute, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than permitted prior thereto), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) actually and
reasonably incurred or suffered by such indemnitee in connection therewith, and
such indemnification shall continue as to an indemnitee who has ceased to be a
director or designated officer and shall inure to the benefit of the
indemnitee's heirs, executors and administrators; provided, however, that,
except as provided in Section l(c) of this Article IX with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding initiated by such
indemnitee only if such proceeding initiated by such indemnitee was authorized
by the Board. The right to indemnification conferred in this Article IX 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 (hereinafter an "advancement
15
of expenses"), only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section or otherwise.
(c) If a claim under Section l(b) of this Article IX is not paid in
full by the Corporation within 60 days after a written claim has been received
by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the indemnitee
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
or in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of any undertaking, the indemnitee shall be entitled to be
paid also the expenses of prosecuting or defending such suit. In (i) any suit
brought by the indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by the indemnitee to enforce a right to an advancement of
expenses) it shall be a defense that, and (ii) any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met the applicable standard of conduct set forth in
the Delaware Statute. Neither the failure of the Corporation (including the
Board, independent legal counsel or stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the Delaware Statute, nor an actual
determination by the Corporation (including the Board, independent legal counsel
or stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Section or otherwise shall be on the Corporation.
(d) The rights to indemnification and the advancement of expenses
conferred in this Article IX shall not be exclusive of any other rights which
any person may have or hereafter acquire pursuant to any statute, the
Certificate of Incorporation, agreement, vote of stockholders or disinterested
directors or otherwise.
SECTION 2. INSURANCE. The Corporation may purchase and maintain
insurance, at its expense, on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any
expense, liability or loss, whether or not the Corporation would have the power
to Indemnify such person against such expense, liability or loss under this
Article IX or the Delaware Statute.
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ARTICLE X
GENERAL PROVISIONS
SECTION 1. TRANSACTIONS WITH INTERESTED PARTIES. No contract or
transaction between the Corporation and one or more of the directors or
officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of the directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board or a committee of the
Board at which the contract or transaction is authorized or solely because any
such director's or officer's votes are counted for such purpose, if:
(a) The material facts as to the director's or officer's relationship
or interest and as to the contract or transaction are disclosed or are known to
the Board or the committee, and the Board in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum;
(b) The material facts as to the director's or officer's relationship
or interest and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee of the Board, or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
SECTION 2. SEVERABILITY. Any determination that any provision of these
By-laws is for any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-laws.
SECTION 3. PRONOUNS. All pronouns used in these By-laws shall be deemed
to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
ARTICLE XI
AMENDMENTS
Any by-law (including these By-laws) may be adopted, amended or
repealed by the vote of the holders of a majority of the shares then entitled to
vote at an election of directors, or by vote of the Board or by the directors'
written consent pursuant to Section 6 of Article III.
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