Bylaws - CancerVax Corp.
AMENDED AND RESTATED
BYLAWS
OF
CANCERVAX CORPORATION
TABLE OF CONTENTS
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ARTICLE I OFFICES............................................................... 1
Section 1. REGISTERED OFFICES............................................... 1
Section 2. OTHER OFFICES.................................................... 1
ARTICLE II MEETINGS OF STOCKHOLDERS............................................. 1
Section 1. PLACE OF MEETINGS................................................ 1
Section 2. ANNUAL MEETING OF STOCKHOLDERS................................... 1
Section 3. QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF.................... 1
Section 4. VOTING........................................................... 2
Section 5. PROXIES.......................................................... 2
Section 6. SPECIAL MEETINGS................................................. 3
Section 7. NOTICE OF STOCKHOLDERS' MEETINGS................................. 3
Section 8. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.......... 3
Section 9. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS................... 4
Section 10. MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST.................. 8
Section 11. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING......... 8
ARTICLE III DIRECTORS........................................................... 8
Section 1. THE NUMBER OF DIRECTORS.......................................... 8
Section 2. VACANCIES........................................................ 9
Section 3. POWERS........................................................... 9
Section 4. PLACE OF DIRECTORS' MEETINGS..................................... 9
Section 5. REGULAR MEETINGS................................................. 10
Section 6. SPECIAL MEETINGS................................................. 10
Section 7. QUORUM........................................................... 10
Section 8. ACTION WITHOUT MEETING........................................... 10
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Section 9. TELEPHONIC MEETINGS............................................. 10
Section 10. COMMITTEES OF DIRECTORS........................................ 11
Section 11. MINUTES OF COMMITTEE MEETINGS.................................. 11
Section 12. COMPENSATION OF DIRECTORS...................................... 11
ARTICLE IV OFFICERS............................................................ 12
Section 1. OFFICERS........................................................ 12
Section 2. ELECTION OF OFFICERS............................................ 12
Section 3. SUBORDINATE OFFICERS............................................ 12
Section 4. COMPENSATION OF OFFICERS........................................ 12
Section 5. TERM OF OFFICE; REMOVAL AND VACANCIES........................... 12
Section 6. POWERS AND DUTIES OF OFFICERS................................... 12
ARTICLE V INDEMNIFICATION OF EMPLOYEES AND AGENTS.............................. 13
ARTICLE VI CERTIFICATES OF STOCK............................................... 13
Section 1. CERTIFICATES.................................................... 13
Section 2. SIGNATURES ON CERTIFICATES...................................... 13
Section 3. STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES.............. 13
Section 4. LOST CERTIFICATES............................................... 14
Section 6. TRANSFERS OF STOCK.............................................. 14
Section 7. REGISTERED STOCKHOLDERS......................................... 14
ARTICLE VII GENERAL PROVISIONS................................................. 15
Section 1. CHECKS.......................................................... 15
Section 2. FISCAL YEAR..................................................... 15
Section 3. CORPORATE SEAL.................................................. 15
Section 4. MANNER OF GIVING NOTICE......................................... 15
Section 5. WAIVER OF NOTICE................................................ 15
ARTICLE VIII AMENDMENTS......................................................... 16
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AMENDED AND RESTATED
BYLAWS
OF
CANCERVAX CORPORATION
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICES. The registered office shall be
in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. OTHER OFFICES. The corporation may also have
offices at such other places both within and without the State of Delaware as
the Board (the "Board") may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of stockholders shall
be held at any place within or outside the State of Delaware designated by the
Board. In the absence of any such designation, stockholders' meetings shall be
held at the principal executive office of the corporation.
Section 2. ANNUAL MEETING OF STOCKHOLDERS. The annual meeting
of stockholders shall be held each year on a date and a time designated by the
Board. At each annual meeting directors shall be elected and any other proper
business may be transacted.
Section 3. QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF. A
majority of the stock issued and outstanding and entitled to vote at any meeting
of stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
Bylaws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to
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leave less than a quorum and the votes present may continue to transact business
until adjournment. If, however, such quorum shall not be present or represented
at any meeting of the stockholders, a majority of the voting stock represented
in person or by proxy may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote thereat.
Section 4. VOTING. When a quorum is present at any meeting, in
all matters other than the election of directors, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy and entitled to vote on a particular question shall decide such question
brought before such meeting, unless the question is one upon which by express
provision of the statutes, or the Certificate of Incorporation, or these Bylaws,
a different vote is required in which case such express provision shall govern
and control the decision of such question. Directors shall be elected by a
plurality of the votes of the stock present in person or represented by proxy at
the meeting and entitled to vote on the election of directors.
Section 5. PROXIES. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him or her by proxy appointed by an instrument in
writing subscribed by such stockholder and bearing a date not more than three
years prior to said meeting, unless said instrument provides for a longer
period. All proxies must be filed with the Secretary of the corporation at the
beginning of each meeting in order to be counted in any vote at the meeting.
Each stockholder shall have one vote for each share of stock having voting
power, registered in his name on the books of the corporation on the record date
set by the Board as provided in Article II, Section 8 hereof.
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Section 6. SPECIAL MEETINGS. Special meetings of the
stockholders, for any purpose, or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the Chairman of
the Board or the President and shall be called by the President or the Secretary
at the request in writing of the Board. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 7. NOTICE OF STOCKHOLDERS' MEETINGS. Whenever
stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which notice shall state the place,
date and hour of the meeting, and, in the case of a special meeting, the purpose
or purposes for which the meeting is called. The written notice of any meeting
shall be given to each stockholder entitled to vote at such meeting not less
than ten nor more than sixty days before the date of the meeting. If mailed,
notice is given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
corporation.
Section 8. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD. In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, 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 by the Board,
and which record date: (a) in the case of determination of stockholders entitled
to vote at any meeting of stockholders or adjournment thereof, shall, unless
otherwise required by law, not be more than sixty nor less than ten days before
the date of such meeting; and (b) in the case of any other action, shall not be
more than sixty days prior to such other action. If no record date is fixed: (i)
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; and
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(ii) the record date for determining stockholders for any other purpose shall be
at the close of business on the day on which the Board adopts the resolution
relating thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
Section 9. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(a) Nominations of persons for election to the
Board of the corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (i) pursuant to
the corporation's notice of meeting (or any supplement thereto), (ii) by or at
the direction of the Board or (iii) by any stockholder of the corporation who
was a stockholder of record at the time notice provided for in this Section 9 is
given to the Secretary of the corporation, who is entitled to vote at the
meeting and who complies with the notice procedures in this Section 9.
(b) For nominations or other business to be
properly brought before an annual meeting by a stockholder pursuant to clause
(iii) of paragraph (a) of this Section 9, the stockholder must have given timely
notice thereof in writing to the Secretary of the corporation and any such
proposed business other than the nominations of persons for election to the
Board must constitute a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the corporation not later than the close of business on the
ninetieth day nor earlier than the close of business on the one hundred
twentieth day 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 more than thirty days before or more than sixty days after such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the one hundred twentieth day prior to
such annual meeting and not later than the close of business on the later of the
ninetieth day prior to such annual meeting or the tenth day following the
earlier of (i) the day on which notice of the meeting was mailed or (ii) the
date public announcement of the date of such meeting is first made by the
corporation. In no event shall the public announcement of an adjournment or
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postponement of an annual meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth: (A) as to each person whom the stockholder
proposes to nominate for election or re-election as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and Rule 14a-101 thereunder
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (B) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the text
of the proposal or business (including the text of any resolutions proposed for
consideration and, in the event that such business includes a proposal to amend
the Bylaws, the language of the proposed amendment), 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 nomination or
proposal is made; and (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 and of such beneficial owner, as they
appear on the corporation's books, (II) the class and number of shares of
capital stock of the corporation which are owned beneficially and of record by
such stockholder and such beneficial owner, (III) a representation that the
stockholder is a holder of record of stock of the corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
propose such business or nomination and (IV) a representation whether the
stockholder or the beneficial owner, if any, intends or is part of a group which
intends (y) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the corporation's outstanding capital stock required to
approve or adopt the proposal or elect the nominee and/or (z) otherwise to
solicit proxies from stockholders in support of such proposal or nomination. The
foregoing notice requirements shall be deemed satisfied by a stockholder if the
stockholder has notified the corporation of his or her intention to present a
proposal at
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an annual meeting in compliance with Rule 14a-8 (or any successor thereof)
promulgated under the Exchange Act and such stockholder's proposal has been
included in a proxy statement that has been prepared by the corporation to
solicit proxies for such annual meeting. The corporation may require any
proposed nominee to furnish such other information as it may reasonably require
to determine the eligibility of such proposed nominee to serve as a director of
the corporation.
(c) 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 may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the corporation's notice of meeting (i)
by or at the direction of the Board or (ii) provided that the Board has
determined that directors shall be elected at such meeting, by any stockholder
of the corporation who is a stockholder of record at the time the notice
provided for in this Section 9 is delivered to the Secretary of the corporation,
who is entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 9. In the event the corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board, any such stockholder entitled to vote in such election
of directors may nominate a person or persons (as the case may be) for election
to such position(s) as specified in the corporation's notice of meeting, if the
stockholder's notice required by paragraph (b) of this Section 9 shall be
delivered to the Secretary at the principal executive offices of the corporation
not earlier than the close of business on the one hundred twentieth day prior to
such special meeting and not later than the close of business on the later of
(i) the ninetieth day prior to such special meeting or (ii) the tenth 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. In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above.
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(d) (i) Only such persons who are nominated
in accordance with the procedures set forth in this Section 9 shall be eligible
to be elected at an annual or special meeting of stockholders of the corporation
to serve as directors, and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 9. Except as otherwise provided by law,
the chairman of the meeting shall have the power and duty (A) to determine
whether a nomination or any business proposed to be brought before the meeting
was made or proposed, as the case may be, in accordance with the procedures set
forth in this Section 9 (including whether the stockholder or beneficial owner,
if any, on whose behalf the nomination or proposal is made solicited (or is part
of a group which solicited) or did not so solicit, as the case may be, proxies
in support of such stockholder's nominee or proposal in compliance with such
stockholder's representation as required by paragraph (b) of this Section 9) and
(B) if any proposed nomination or business was not made or proposed in
compliance with this Section 9, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 9, if the stockholder
(or a qualified representative of the stockholder) does not appear at the annual
or special meeting of stockholders of the corporation to present a nomination or
business, such nomination shall be disregarded and such proposed business shall
not be transacted, notwithstanding that proxies in respect of such vote may have
been received by the corporation.
(ii) For purposes of this Section 9,
"public announcement" shall include disclosure in a press release reported by
PRNewswire, Business Wire, the Dow Jones News Service, Associated Press or
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.
(iii) Notwithstanding the foregoing
provisions of this Section 9, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and
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regulations promulgated thereunder with respect to the matters set forth in this
Section 9. Nothing in this Section 9 shall be deemed to affect any rights (A) of
stockholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (B) of the holders of
any series of preferred stock of the corporation to elect directors pursuant to
any applicable provisions of the Certificate of Incorporation.
Section 10. MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST.
The officer who has charge of the stock ledger of the corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city 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.
Section 11. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING. Unless otherwise provided in the Certificate of Incorporation, any
action required to be taken at any annual or special meeting of stockholders of
the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may not be taken without a meeting.
ARTICLE III
DIRECTORS
Section 1. THE NUMBER OF DIRECTORS. The number of directors
which shall constitute the whole Board shall be not less than three nor more
than fifteen. The actual number of directors shall be fixed from time to time
solely by resolution adopted by the affirmative vote of a majority of the
directors. The directors need not be stockholders. The directors shall be
elected at the annual meeting of
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the stockholders, except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or by law, any director or the entire Board may be removed, for
cause, from the Board at any meeting of stockholders by not less than 66 2/3% of
the outstanding stock of the Corporation.
Section 2. VACANCIES. Vacancies on the Board by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a vote of the majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. The directors so chosen shall hold office until the next annual
election of directors and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute. If, at the
time of filling any vacancy or any newly created directorship, the directors
then in office shall constitute less than a majority of the whole Board (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least ten percent
of the total number of the shares at the time outstanding having the right to
vote for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. POWERS. The property and business of the
corporation shall be managed by or under the direction of its Board. In addition
to the powers and authorities by these Bylaws expressly conferred upon them, the
Board may exercise all such powers of the corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these Bylaws directed or required to be exercised or done by the
stockholders.
Section 4. PLACE OF DIRECTORS' MEETINGS. The directors may
hold their meetings and have one or more offices, and keep the books of the
corporation outside of the State of Delaware.
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Section 5. REGULAR MEETINGS. Regular meetings of the Board may
be held without notice at such time and place as shall from time to time be
determined by the Board.
Section 6. SPECIAL MEETINGS. Special meetings of the Board may
be called by the Chairman of the Board or the President on forty-eight hours'
notice to each director, either personally or by mail or by telegram; special
meetings shall be called by the President or the Secretary in like manner and on
like notice on the written request of two directors unless the Board consists of
only one director; in which case special meetings shall be called by the
President or Secretary in like manner or on like notice on the written request
of the sole director.
Section 7. QUORUM. At all meetings of the Board a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board, except as may be otherwise specifically provided by statute,
by the Certificate of Incorporation or by these Bylaws. If a quorum shall not be
present at any meeting of the Board, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present. If only one director is authorized,
such sole director shall constitute a quorum.
Section 8. ACTION WITHOUT MEETING. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 9. TELEPHONIC MEETINGS. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at such meeting.
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Section 10. COMMITTEES OF DIRECTORS. The Board may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one or more of the directors of
the corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he, she or they constitute a quorum,
may unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board, shall have and may exercise all
the powers and authority of the Board in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
Bylaws of the corporation; and, unless the resolution or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
Section 11. MINUTES OF COMMITTEE MEETINGS. Each committee
shall keep regular minutes of its meetings and report the same to the Board when
required.
Section 12. COMPENSATION OF DIRECTORS. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, the Board shall
have the authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the Board and may
be paid a fixed sum for attendance at each meeting of the Board or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
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ARTICLE IV
OFFICERS
Section 1. OFFICERS. The officers of this corporation shall be
chosen by the Board and shall include a President, a Secretary, and a Chief
Financial Officer or Treasurer. The corporation may also have at the discretion
of the Board such other officers as are desired, including one or more Vice
Presidents, one or more Assistant Secretaries and Assistant Treasurers, and such
other officers as may be appointed in accordance with the provisions of Section
3 hereof. In the event there are two or more Vice Presidents, then one or more
may be designated as Executive Vice President, Senior Vice President, or other
similar or dissimilar title. At the time of the election of officers, the
directors may by resolution determine the order of their rank. Any number of
offices may be held by the same person, unless the Certificate of Incorporation
or these Bylaws otherwise provide.
Section 2. ELECTION OF OFFICERS. The Board, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the corporation.
Section 3. SUBORDINATE OFFICERS. The Board may appoint such
other officers and agents as it shall deem necessary 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.
Section 4. COMPENSATION OF OFFICERS. The salaries of all
officers and agents of the corporation shall be fixed by the Board.
Section 5. TERM OF OFFICE; REMOVAL AND VACANCIES. The officers
of the corporation shall hold office until their successors are chosen and
qualify in their stead. Any officer elected or appointed by the Board may be
removed at any time by the affirmative vote of a majority of the Board. If the
office of any officer or officers becomes vacant for any reason, the vacancy
shall be filled by the Board.
Section 6. POWERS AND DUTIES OF OFFICERS. The officers of the
corporation shall have such powers and duties in the management of the
corporation as may be prescribed in a
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resolution by the Board and, to the extent not so provided, as generally pertain
to their respective offices, subject to the control of the Board.
ARTICLE V
INDEMNIFICATION OF EMPLOYEES AND AGENTS
The corporation may indemnify every person who was or is a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he or she is or was an employee or agent of the corporation or,
while an employee or agent of the corporation, is or was serving at the request
of the corporation as an employee or agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including counsel fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding, to the extent permitted by applicable law.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. CERTIFICATES. Every holder of stock of the
corporation shall be entitled to have a certificate signed by, or in the name of
the corporation by, the President or a Vice President, and by the Secretary or
an Assistant Secretary, or the Treasurer or an Assistant Treasurer of the
corporation, certifying the number of shares represented by the certificate
owned by such stockholder in the corporation.
Section 2. SIGNATURES ON CERTIFICATES. 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 were such officer, transfer agent, or
registrar at the date of issue.
Section 3. STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES.
If the corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the
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powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualification,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in section 202 of the General Corporation Law
of Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, a statement that the corporation will
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 4. LOST CERTIFICATES. The Board may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board may, in
its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 6. TRANSFERS OF STOCK. Upon surrender to the
corporation, or the transfer agent of the corporation, of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignation or authority to transfer, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 7. REGISTERED STOCKHOLDERS. The corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim or interest in such share on the part of any other
person,
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whether or not it shall have express or other notice thereof, save an expressly
provided by the laws of the State of Delaware.
ARTICLE VII
GENERAL PROVISIONS
Section 1. CHECKS. All checks or demands for money and notes
of the corporation shall be signed by such officer or officers as the Board may
from time to time designate.
Section 2. FISCAL YEAR. The fiscal year of the corporation
shall be fixed by resolution of the Board.
Section 3. CORPORATE SEAL. The corporate seal shall have
inscribed thereon the name of the corporation, and shall be in such form as may
be approved from time to time by the Board.
Section 4. MANNER OF GIVING NOTICE. Whenever, under the law or
of the Certificate of Incorporation or of these Bylaws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram, telecopier or other means of
communication permitted by law.
Section 5. WAIVER OF NOTICE. Whenever any notice is required
to be given under the law or of the Certificate of Incorporation or of these
Bylaws, 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. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the
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stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice.
ARTICLE VIII
AMENDMENTS
These Bylaws may be altered, amended or repealed or new Bylaws
may be adopted by the stockholders or by the Board in accordance with the terms
of the Certificate of Incorporation. If the power to adopt, amend or repeal
Bylaws is conferred upon the Board by the Certificate of Incorporation it shall
not divest or limit the power of the stockholders to adopt, amend or repeal
Bylaws.
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