By-Laws - Biopure Corp.
BY-LAWS
OF
BIOPURE CORPORATION
(AS AMENDED JUNE 24, 1999)
ARTICLE I
OFFICES
1. Registered Office. The registered office in the State of Delaware is
the Corporation Service Company, 1013 Centre Rd., in the City of Wilmington, in
the State of Delaware.
2. Other Offices. The Corporation may have other offices, either within
or without the State of Delaware, at such place or places as the Board of
Directors may from time to time appoint or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
1. Annual Meetings. Annual meetings of stockholders for the election of
directors and for such other business as may be stated in the notice of the
meeting shall be held at such place, either within or without the State of
Delaware, and at such time and date as shall be designated by the Board of
Directors.
2. Special Meetings. Special meetings of stockholders may be held at such
place, either within or without the State of Delaware, and at such time and date
as shall be stated in the notice of the meeting. Special meetings of the
stockholders, other than those required by statute, may be called at any time
only by the Chairman of the Board of Directors or by the Board of Directors
pursuant to a resolution approved by a majority of the entire Board of
Directors. The Board of Directors may postpone, reschedule or cancel any
previously scheduled special meeting.
3. Annual and Special Meeting Procedures. Nominations of persons for
election to the Board of Directors and the proposal of business to be transacted
by the stockholders may be made at an annual meeting of stockholders (a)
pursuant to the Corporation's notice with respect to such meeting, (b) by or at
the direction of the Board of Directors or (c) by any stockholder of record of
the Corporation who was a stockholder of record at the time of the giving of the
notice provided for in the following paragraph, who is entitled to vote at the
meeting and who has complied with the notice procedures set forth in this
section.
For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (c) of the foregoing paragraph, (1)
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the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation, (2) such business must be a proper matter for
stockholder action under the General Corporation Law of the State of Delaware,
(3) if the stockholder, or the beneficial owner on whose behalf any such
proposal or nomination is made, has provided the Corporation with a Solicitation
Notice, as that term is defined in subclause (c)(iii) of this paragraph, such
stockholder or beneficial owner must, in the case of a proposal, have delivered
a proxy statement and form of proxy to holders of at least the percentage of the
Corporation's voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of the Corporation's
voting shares reasonably believed by such stockholder or beneficial holder to be
sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder, and must, in either case, have included in such materials the
Solicitation Notice and (4) if no Solicitation Notice relating thereto has been
timely provided pursuant to this section, the stockholder or beneficial owner
proposing such business or nomination must not have solicited a number of
proxies sufficient to have required the delivery of such a Solicitation Notice
under this section. To be timely, a stockholder's notice shall be delivered to
the Secretary at the principal executive offices of the Corporation not less
than 45 or more than 75 days prior to the first anniversary (the "Anniversary")
of the date on which the Corporation first mailed its proxy materials for the
preceding year's annual meeting of stockholders; provided, however, that if no
proxy materials were mailed by the Corporation in connection with the preceding
year's annual meeting, or if the date of the annual meeting is advanced more
than 30 days prior to or delayed by more than 30 days after the anniversary of
the preceding year's annual meeting, notice by the stockholder to be timely must
be so delivered not later than the close of business on the later of (i) the
90th day prior to such annual meeting or (ii) the 10th day following the day on
which public announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person as would be required to be disclosed in solicitations of
proxies for the election of such nominees as directors pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and such person's written consent to serve as a director if elected; (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of such business, the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner, and
(iii) whether either such stockholder or beneficial owner intends to deliver a
proxy statement and form of proxy to holders of, in the case of a proposal, at
least the percentage of the Corporation's voting shares required under
applicable law to carry
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the proposal or, in the case of a nomination or nominations, a sufficient number
of holders of the Corporation's voting shares to elect such nominee or nominees
(an affirmative statement of such intent, a "Solicitation Notice").
Notwithstanding anything in the second sentence of the second paragraph
of this Section 3 to the contrary, in the event that the number of directors to
be elected to the Board of Directors is increased and there is no public
announcement naming all of the nominees for director or specifying the size of
the increased Board made by the Corporation at least 55 days prior to the
Anniversary, a stockholder's notice required by this Bylaw shall also be
considered timely but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
Only persons nominated in accordance with the procedures set forth in
this Section 3 shall be eligible to serve as directors and only such business
shall be conducted at an annual meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
section. The chair of the meeting shall have the power and the duty to determine
whether a nomination or any business proposed to be brought before the meeting
has been made in accordance with the procedures set forth in these By-laws and,
if any proposed nomination or business is not in compliance with these By-laws,
to declare that such defective proposed business or nomination shall not be
presented for stockholder action at the meeting and shall be disregarded.
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) by any stockholder of
record of the Corporation who is a stockholder of record at the time of giving
of notice provided for in this paragraph, who shall be entitled to vote at the
meeting and who complies with the applicable notice procedures set forth in this
Section 3. Nominations by stockholders of persons for election to the Board of
Directors may be made at such a special meeting of stockholders if the
stockholder's notice required by the second paragraph of this Section 3 shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the later of the 90th day prior to such
special meeting or the 10th day following the day on which public announcement
is first made of the date of the special meeting and of the nominees proposed by
the Board to be elected at such meeting.
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For purposes of this section, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or a
comparable national news 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 Exchange Act.
Notwithstanding the foregoing provisions of this Section 3, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to matters set forth in this
Section 3. Nothing in this Section 3 shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
4. Fiscal Year.
The fiscal year of the Corporation shall be as fixed by the Board of
Directors.
5. Time Periods.
In applying any provision of these By-laws which requires that an act be
done or not be done a specified number of days prior to an event or that an act
be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
6. Voting. Each stockholder entitled to vote in accordance with the terms
of the Restated Certificate of Incorporation and in accordance with the
provisions of these By-Laws shall be entitled to such number of votes as
provided in the Restated Certificate of Incorporation, in person or by proxy,
for each share of stock entitled to vote held by such stockholder, but no proxy
shall be voted after three years from its date unless such proxy provides for a
longer period. Upon the demand of any stockholder, the vote for directors and
the vote upon any question before the meeting shall be by ballot. At all
meetings of stockholders, all matters, except for the election of directors and
except as otherwise provided by law, the Restated Certificate of Incorporation
or these By-laws, shall be determined by the affirmative vote of the holders
entitled to cast a majority of the votes entitled to be cast in respect of the
shares present in person or by proxy and entitled to vote on the subject matter.
Directors shall be elected by a plurality of the votes cast at the annual
meeting of stockholders.
7. Voting List. A complete list of the stockholders entitled to vote at
the ensuing election of directors, arranged in alphabetical order showing the
address of each stockholder and the number of shares held by each stockholder,
shall be open to
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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.
8. Quorum. Except as otherwise required by law, the Restated Certificate
of Incorporation or these By-Laws, the presence, in person or by proxy, of
stockholders entitled to cast a majority of the votes entitled to be cast in
respect of all outstanding shares of stock of the Corporation shall constitute a
quorum at all meetings of the stockholders. In case a quorum shall not be
present at any meeting, the Chairman of the Board, the President or other person
entitled to chair the meeting or a majority in voting interest of the
stockholders entitled to vote thereat, present in person or by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. At any such
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
noticed.
9. Notice of Meetings. Written notice, stating the place, date and time
of the meeting, and the general nature of the business to be considered, shall
be given to each stockholder entitled to vote thereat at his address as it
appears on the records of the Corporation, not less than ten nor more than sixty
days before the date of the meeting. No business other than that stated in the
notice shall be transacted at any special meeting without the unanimous consent
of all the stockholders entitled to vote thereat.
ARTICLE III
DIRECTORS
1. Number and Term. The business and affairs of the Corporation shall be
managed by or under a Board of Directors consisting of five or more directors,
the number thereof to be determined from time to time by the Board. Subject to
the Restated Certificate of Incorporation, the directors shall be elected at the
annual meeting of the stockholders, and each director shall be elected to serve
until his successor shall be elected and shall qualify or until the director's
earlier resignation or removal. Directors need not be stockholders.
2. Resignations. Any director may resign at any time. Such resignation
shall be made in writing, and shall take effect at the time specified therein,
and if no time be specified, at the time of its receipt by the Chairman of the
Board of
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Directors, if one be elected, the President or the Secretary. The acceptance of
a resignation shall not be necessary to make it effective, unless so specified
therein.
3. Vacancies. Subject to the Restated Certificate of Incorporation, if
the office of any director becomes vacant for any reason, including but not
limited to newly created directorships resulting from any increase in the number
of directors within the limits provided for by Section l of this Article III,
the remaining directors in office, though less than a quorum, by a majority vote
may appoint any qualified person to fill such vacancy, who shall hold office for
the unexpired term and until his or her successor shall be duly chosen.
4. Powers. The Board of Directors shall exercise all of the powers of the
Corporation except such as are by law, the Restated Certificate of Incorporation
or these By-Laws conferred upon or reserved to the stockholders.
5. Meetings. Regular meetings of the directors may be held without notice
at such places and times as shall be determined from time to time by resolution
of the directors. Special meetings of the Board of Directors may be called by
the Chairman of the Board or the President or by the Secretary on the written
request of any two directors on at least two days' notice to each director and
shall be held at such place or places as may be determined by the directors, or
as shall be stated in the call of the meeting. Notice of a meeting need not be
given to any director who submits a signed waiver of notice before or after the
meeting, nor to any director who attends the meeting without protesting the lack
of notice either prior to the meeting or at its commencement.
6. Quorum. A majority of the total number of directors shall constitute a
quorum for the transaction of business, and the acts of a majority of the
directors present at a meeting at which a quorum is present shall be the acts of
the Board of Directors, unless otherwise provided by law, the Restated
Certificate of Incorporation or these By-Laws. If at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time until a quorum is obtained, and no
further notice thereof need be given other than by announcement at the meeting
which shall be so adjourned.
7. Compensation. The Board of Directors may establish by resolution
reasonable compensation of all directors for services to the Corporation as
directors. Nothing herein contained shall be construed to preclude any director
from serving the Corporation in any other capacity as an officer, agent or
otherwise, and receiving compensation therefor. Each director shall be entitled
to be reimbursed by the Corporation for such transportation and other expenses
actually and reasonably incurred by him or her in attending a meeting and in
traveling to and from such meeting.
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8. Action Without Meeting. 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 of Directors or such
committee, as the case may be, consent thereto in writing, and such written
consent is filed with the minutes of the proceedings of the Board of Directors
or the committee, as the case may be.
9. Participation in Meeting by Telephone. Any one or more members of the
Board of Directors or any committee thereof may participate in a meeting of the
Board of Directors or any committee thereof by means of a conference telephone
or similar communications equipment allowing all persons participating in the
meeting to hear each other at the same time. Participation by such means shall
constitute presence in person at such meeting.
ARTICLE IV
COMMITTEES
1. Committees. The Board of Directors, by resolution passed by a majority
of the entire board, may designate one (1) or more committees of the Board of
Directors, each consisting of two (2) or more directors. To the extent provided
in the resolution, and permitted by law, the committee or committees shall have
and may exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation. Any committee or committees shall have
the name or names determined from time to time by resolution adopted by the
Board of Directors. Any vacancy in a committee occurring from any cause
whatsoever may be filled by the Board of Directors.
The Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The By-laws may provide that for the absence or disqualification
of a member of a committee, the member or members present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to sit
at the meeting in the place of any such absent or disqualified member.
2. Resignation. Any member of a committee may resign at any time upon
notice to the Board of Directors. Such resignation shall be made in writing and
shall take effect at the time specified therein, or, if no time be specified, at
the time of its receipt by the Chairman of the Board of Directors, if one be
elected, the President or the Secretary. The acceptance of a resignation shall
not be necessary to make it effective unless so specified therein.
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3. Quorum. A majority of the members of a committee shall constitute a
quorum. The act of a majority of the members of a committee present at any
meeting at which a quorum is present shall be the act of such committee. The
members of a committee shall act only as a committee, and the individual members
thereof shall have no powers as such.
4. Record of Proceedings. Each committee shall keep a record of its acts
and proceedings and shall report the same to the Board of Directors when and as
required by the Board of Directors.
5. Organization, Meetings, Notices. A committee may hold its meetings at
the principal office of the Corporation, or at any other place upon which a
majority of the committee may at any time agree. Each committee may make such
rules as it may deem expedient for the regulation and carrying on of its
meetings and proceedings. Any notice of a meeting of such Committee may be given
by the Secretary of the Corporation or by the chairman of the Committee and
shall be sufficiently given if given to each member at least two (2) days before
the day on which the meeting is to be held. Notice of a meeting need not be
given to any member who submits a signed waiver of notice before or after the
meeting, nor to any director who attends the meeting without protesting the lack
of notice prior to the meeting or at its commencement.
6. Compensation. The members of any committee shall be entitled to such
compensation as may be allowed them by resolution of the Board of Directors.
ARTICLE V
OFFICERS
1. Officers. The officers of the Corporation shall be a Chief Executive
Officer, a President and a Secretary, all of whom shall be elected by the Board
of Directors and who shall, except as provided herein, hold office until their
successors are elected and qualified or until their earlier resignation or
removal. In addition, the Board of Directors may elect a Chairman of the Board
of Directors, a Treasurer, one or more Vice-Presidents and such other officers
as it deems proper. None of the officers of the Corporation need be directors.
The officers shall be elected at the first meeting of the Board of Directors
after each annual meeting. Any two or more offices may be held by the same
person. The Board of Directors may fill any vacancy which may occur in any
office.
2. Removal of Officers. Any officer of the Corporation may be removed
from office, for or without cause, by a vote of a majority of the Board of
Directors.
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3. Resignation. Any officer of the Corporation may resign at any time
upon notice to the Corporation. Such resignation shall be in writing and shall
take effect at the time specified therein, and if no time be specified, at the
time of its receipt by the Chairman of the Board of Directors, if one be
elected, the President or the Secretary. The acceptance of a resignation shall
not be necessary in order to make it effective, unless so specified therein.
4. Other Officers and Agents. The Board of Directors may appoint such
other officers and agents as it may deem advisable, who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall
be determined from time to time by the Board of Directors.
5. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if one be elected, shall preside at all meetings of the Board of
Directors and shall have and perform such other duties as from time to time may
be assigned to him or her by the Board of Directors.
6. Chief Executive Officer. The Chief Executive Officer shall be the
chief executive officer of the Corporation and shall have the general powers and
duties of supervision and management usually vested in the office of chief
executive officer of a corporation. The Chief Executive Officer shall preside at
all meetings of the stockholders if present thereat, and, in the absence or
non-election of the Chairman of the Board of Directors, at all meetings of the
Board of Directors.
7. President. The President shall be the chief operating officer of the
Company and shall have general supervision, direction and control of the
business of the Corporation. Except as the Board of Directors shall authorize
the execution thereof in some other manner, the President shall execute bonds,
mortgages and other contracts on behalf of the Corporation.
8. Vice-President. Each Vice-President shall have such powers and shall
perform such duties as shall be assigned to him or her by the Board of
Directors.
9. Treasurer. The Treasurer, if one be elected, shall have the custody of
the corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. The Treasurer,
if one be elected, shall deposit all moneys and other valuables in the name and
to the credit of the Corporation in such depositories as may be designated by
the Board of Directors. The Treasurer, if one be elected, shall disburse the
funds of the Corporation as may be ordered by the Board of Directors or the
President, taking proper vouchers for such disbursements. The Treasurer, if one
be elected, shall render to the President and Board of Directors at the regular
meetings of the Board of Directors, or whenever they may request it, an account
of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer, if one
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be elected, shall give the Corporation a bond for the faithful discharge of his
or her duties in such amount and with such surety as the Board of Directors
shall prescribe.
10. Secretary. The Secretary shall give, or cause to be given, notice of
all meetings of stockholders and directors, and all other notices required by
law or by these By-Laws, and in case of his or her absence or refusal or neglect
to do so, any such notice may be given by any person thereunto directed by the
President or the Board of Directors as provided in these By-Laws. The Secretary
shall attend all meetings of the Board of Directors and of the stockholders and
shall record all votes and the minutes of all the proceedings of such meetings
in a book to be kept for that purpose, and shall perform like duties for any
committee appointed by the Board of Directors. The Secretary shall perform such
other duties as may be assigned to him or her by the Board of Directors or the
President.
11. Assistant Treasurers and Assistant Secretaries. Assistant Treasurers
and Assistant Secretaries, if any, shall have such powers and shall perform such
duties as shall be assigned to them, respectively, by the Board of Directors.
ARTICLE VI
MISCELLANEOUS
1. Certificate of Stock. Certificates representing stock in the
Corporation shall be signed by the Chairman of the Board of Directors, if one be
elected, the President or one of the Vice-Presidents and the Treasurer or an
Assistant Treasurer, or Secretary or an Assistant Secretary, and shall be issued
to each stockholder certifying the number of shares owned by him in the
Corporation. Any or all of the signatures 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 she was such
officer, transfer agent or registrar at the date of issue.
2. Lost Certificates. A new certificate of stock may be issued in the
place of any certificate, theretofore issued by the Corporation, alleged to have
been lost, stolen or destroyed, and the Board of Directors may, in their
discretion, require the owner of the lost, stolen or destroyed certificate or
his legal representative to give the Corporation a bond, in such sum as they may
direct, not exceeding double the value of the stock, to indemnify the
Corporation against any claim that may be made against the Corporation by reason
of the issue of such new certificate and against any other liability in the
premises, or may remit such holder to such remedy or remedies as the holder may
have under the laws of the State of Delaware.
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3. Transfer of Shares. The shares of stock of the Corporation shall be
transferable only upon its books by the holders thereof in person or by their
duly authorized attorneys or legal representatives, and upon such transfer the
old certificates shall be surrendered to the Corporation by the delivery thereof
to the person in charge of the stock and transfer books and ledgers, or to such
other person as the Board of Directors may designate, by whom such certificates
shall be canceled, and new certificates shall thereupon be issued. A record
shall be made of each transfer and whenever a transfer shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer.
4. Stockholders' 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 to express consent to corporate action in writing
without a meeting, 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, 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 record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors and which shall not be more
than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to any other 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.
5. Dividends. Subject to any restrictions contained in the Restated
Certificate of Incorporation, the Board of Directors may, out of funds legally
available therefor, at any regular or special meeting declare dividends upon the
capital stock of the Corporation. Before declaring any dividend there may be set
apart out of any funds of the Corporation available for dividends, such sum or
sums as the directors from time to time in their discretion deem proper for
working capital or as a reserve fund to meet contingencies or for equalizing
dividends or for such other purposes as the directors shall deem conducive to
the interests of the Corporation.
6. Fiscal Year. The fiscal year of the Corporation shall be determined by
resolution of the Board of Directors.
7. Checks. All checks, drafts or other orders for the payment of money,
notes or other evidences of indebtedness issued in the name of the Corporation
shall be signed by such officer or officers, agent or agents of the Corporation,
and in such manner as shall be determined from time to time by resolution of the
Board of Directors.
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8. Notice and Waiver of Notice. Whenever any notice is required by these
By-Laws to be given, personal notice is not meant unless expressly so stated,
and any notice so required shall be deemed to be sufficient if given by
depositing the same in the United States mail, postage prepaid, addressed to the
person entitled thereto at his or her address as it appears on the records of
the Corporation, and such notice shall be deemed to have been given on the day
of such mailing. Stockholders not entitled to vote shall not be entitled to
receive notice of any meetings except as otherwise provided by statute. Whenever
any notice is required to be given under the provisions of any law, or under the
provisions of the Restated Certificate of Incorporation or these By-Laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE VII
AMENDMENTS
1. By Shareholders. These By-Laws may be amended or repealed at any
annual meeting of the stockholders or at any special meeting thereof, if notice
of the proposed amendment or repeal to be made is contained in the notice of
such special meeting; provided, however, that, in addition to any vote of the
holders of any class or series of stock of the Corporation required by law or by
the Restated Certificate of Incorporation, the affirmative vote of the holders
of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of
all of the then-outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to adopt, amend or repeal any provision of the
By-Laws of the Corporation.
2. By Directors. The Board of Directors is expressly empowered to adopt,
amend or repeal the By-Laws of the Corporation. Any adoption, amendment or
repeal of the By-Laws of the Corporation by the Board of Directors shall require
the approval of a majority of the Whole Board. For purposes of this Section, the
term "Whole Board" shall mean the total number of authorized directors whether
or not there exist any vacancies in previously authorized directorships.
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ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
1. Right to Indemnification.
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 that he or she is or was a director or an officer 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 capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, 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 such law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnities in connection therewith; provided, however, that, except as provided
in Section 3 of this ARTICLE VIII with respect to proceedings to enforce rights
to indemnification, the Corporation shall indemnify any such indemnities in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
2. Right to Advancement of Expenses.
The right to indemnification conferred in Section 1 of this ARTICLE VIII
shall include the right to be paid by the Corporation the expenses (including
attorney's fees) incurred in defending any such proceeding in advance of its
final disposition (hereinafter an "advancement of expenses"); provided, however,
that, if the Delaware General Corporation Law requires, an advancement of
expenses incurred by an indemnitee 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 indemnitee, including, without limitation, service to an employee benefit
plan) shall be made 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 2 or otherwise. The rights to indemnification and to
the
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advancement of expenses conferred in Sections 1 and 2 of this ARTICLE VIII shall
be contract rights and such rights shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
3. Right of Indemnitee to Bring Suit.
If a claim under Section 1 or 2 of this ARTICLE VIII is not paid in full
by the Corporation within sixty (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 twenty (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 an undertaking, the indemnitee shall be
entitled to be paid also the expense 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) in any suit
brought 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 any
applicable standard for indemnification set forth in the Delaware General
Corporation Law. 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 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 General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its 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 brought 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 ARTICLE VIII or otherwise shall be on the
Corporation.
4. Non-Exclusivity of Rights.
The rights to indemnification and to the advancement of expenses
conferred in this ARTICLE VIII shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the Corporation's
Restated Certificate of Incorporation, By-Laws, agreement, vote of stockholders
or disinterested directors or otherwise.
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5. Insurance.
The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, 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.
6. Indemnification of Employees and Agents of the Corporation.
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 to the fullest extent of
the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
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