SECOND
AMENDED AND RESTATED BY-LAWS
OF
IMMUNOMEDICS,
INC.
(A
Delaware Corporation)
Originally
Adopted by the Board of Directors on June 12, 2002
and
As
Amended and Restated by the Board of Directors on August 23,
2007
ARTICLE
1
DEFINITIONS
As
used in
these By-Laws, unless the context otherwise requires, the term:
1.1.
“Assistant
Secretary” means an Assistant Secretary of the Corporation.
1.2.
“Assistant
Treasurer” means an Assistant Treasurer of the Corporation.
1.3.
“Board”
means the Board of Directors of the Corporation.
1.4.
“By-Laws”
means the by-laws of the Corporation, as amended from time to time.
1.5.
“Certificate
of Incorporation” means the certificate of incorporation of the Corporation, as
amended, supplemented or restated from time to time.
1.6.
“Chairman”
means the Chairman of the Board of the Corporation.
1.7.
“Chief
Executive Officer” means the Chief Executive Officer of the
Corporation.
1.8.
“Corporate
Officer” means an officer of the Corporation elected by the Board and designated
by the Board as a corporate officer.
1.9.
“Corporation”
means Immunomedics, Inc., a Delaware corporation.
1.10.
“Directors”
means members of the Board.
1.11.
“Full
Board”
means the total number of directors of the Board.
1.12.
“General
Corporation Law” means the General Corporation Law of the State of Delaware, as
amended from time to time.
1.13.
“Office
of
the Corporation” means the executive office of the Corporation, anything in
Section 131 of the General Corporation Law to the contrary
notwithstanding.
1.14.
“President”
means the President of the Corporation.
1.15.
“Secretary”
means the Secretary of the Corporation.
1.16.
“Stockholders”
means stockholders of the Corporation.
1.17.
“Treasurer”
means the Treasurer of the Corporation.
1.18.
“Vice
Chairman means a Vice Chairman of the Corporation.
1.19.
“Vice
President” means a Vice President of the Corporation.
1.20.
“Votes
of
the Total Outstanding Shares” means the votes to which the holders of all of the
outstanding shares of the Corporation are entitled to cast at a meeting of
stockholders.
ARTICLE
2
STOCKHOLDERS
2.1.
Place
of
Meetings
. Every meeting of stockholders shall be held at the office of the
Corporation or at such other place within or without the State of Delaware
as
shall be specified or fixed in the notice of such meeting or in the waiver
of
notice thereof.
2.2.
Annual
Meeting
. An annual meeting of the stockholders, for the election of
directors to succeed those whose terms expire and for the transaction of such
other business as may properly come before the meeting, shall be held at ten
o’clock a.m. or such other time as is determined by the Board, on such date
(other than a Saturday, Sunday or legal holiday) as is determined by the Board
and at such place as the Board shall each year fix.
2.3.
Deferred
Meeting for Election of Directors, Etc
. If no annual meeting is held in
accordance with the foregoing provisions, the Board shall cause the meeting
to
be held as soon thereafter as convenient. If no annual meeting is held in
accordance with the foregoing provisions, a special meeting may be held in
lieu
of the annual meeting, and any action taken at that special meeting shall have
the same effect as if it had been taken at the annual meeting, and in such
case
all references in these By-Laws to the annual meeting of the stockholders shall
be deemed to refer to such special meeting.
2.4.
Other
Special Meetings
. A special meeting of stockholders, unless otherwise
prescribed by statute, may be called at any time by the Chairman, a majority
of
the Full Board or the holders of shares entitled to cast not less than one-fifth
of all of the Votes of the Total Outstanding Shares. At any special meeting
of
stockholders, only such business may be transacted as is related to the purpose
or purposes of such meeting set forth in the notice thereof given pursuant
to
Section 2.6 of the By-Laws or in any waiver of notice thereof given pursuant
to
Section 2.7 of the By-Laws.
2.5.
Fixing
Record Date
. For the purpose of determining the stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders 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, in advance, a date as the record date for any such determination of
stockholders. Such date shall not be more than sixty nor less than ten days
prior to any other action. If no such record date is fixed:
2.5.1
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;
2.5.2
The
record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting, when no prior action by the Board is
necessary, shall be the day on which the first written consent is
expressed;
2.5.3
The
record
date for determining stockholders for any purpose other than those specified
in
Sections 2.5.1 and 2.5.2 shall be at the close of business on the day on which
the Board adopts the resolution relating thereto.
When
a
determination of stockholders entitled to notice of or to vote at any meeting
of
stockholders has been made as provided in this Section 2.5, such determination
shall apply to any adjournment thereof, unless the Board fixes a new record
date
for the adjourned meeting.
2.6.
Notice
of
Meetings of Stockholders
. Except as otherwise provided in Section 2.5 and
2.7 of the By-Laws, whenever under the General Corporation Law or the
Certificate of Incorporation or the By-Laws, stockholders are required or
permitted to take any action at a meeting, written notice shall be given stating
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. A copy of the notice
of
any meeting shall be given, personally or by mail, not less than ten nor more
than sixty days before the date of the meeting, to each stockholder entitled
to
notice of or to vote at such meeting. If mailed, such notice shall be deemed
to
be given two days after it is deposited in the United States mail, with postage
prepaid, directed to the stockholder at his address as it appears on the records
of the Corporation. An affidavit of the Secretary or an Assistant Secretary
or
of the transfer agent of the Corporation that the notice required by this
section has been given shall, in the absence of fraud, be prima facie evidence
of the facts stated therein. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken, and
at
the adjourned meeting any business may be transacted that might have been
transacted at the meeting as originally called. If, however, 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 at the
meeting.
2.7.
Waivers
of Notice
. Whenever notice is required to be given to any stockholder under
any provision of the General Corporation Law or the Certificate of Incorporation
or By-Laws, a written waiver thereof, signed by the stockholder entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a stockholder at a meeting shall constitute
a waiver of notice of such meeting, except when the stockholder 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 stockholders need be specified in any written
waiver of notice.
2.8.
List
of
Stockholders
. The Secretary shall prepare and make, or cause to be prepared
and made, 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 is to be held.
The
list shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is
present.
2.9.
Quorum
of
Stockholders’ Adjournment
. The holders of shares representing a majority of
the Votes of the Total Outstanding Shares, present in person or represented
by
proxy, shall constitute a quorum for the transaction of any business at such
meeting, except as otherwise provided by the General Corporation Law or the
Certificate of Incorporation. If, however, such quorum shall not be present
or
represented by proxy at any meeting of stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have the
power
to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented by proxy. At
such
adjourned meeting at which a quorum shall be present or represented by proxy,
any business may be transacted which might have been transacted at the meeting
as originally called. If the adjournment is for more than thirty days, or,
if
after adjournment a new record date is set, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
When a quorum is once present to organize a meeting of stockholders, it is
not
broken by the subsequent withdrawal of any stockholders.
2.10.
Voting;
Proxies
. Unless otherwise provided in the Certificate of Incorporation,
every stockholder of record shall be entitled at every meeting of stockholders
to one vote for each share of capital stock standing in his name on the record
of stockholders determined in accordance with Section 2.5 of the By-Laws. If
the
Certificate of Incorporation provides for more or less than one vote for any
share, on any matter, every reference in the By-Laws or the General Corporation
Law to a majority or other proportion of stock shall refer to such majority
or
other proportion of the votes of such stock. The provisions of Sections 212
and
217 of the General Corporation Law shall apply in determining whether any shares
of capital stock may be voted and persons, if any, entitled to vote such shares,
but the Corporation shall be protected in treating the persons in whose names
shares of capital stock stand on the record of stockholders as owners thereof
for all purposes. At any meeting of stockholders (at which a quorum was present
to organize the meeting), all matters, except as otherwise provided by law
or by
the Certificate of Incorporation or by the By-Laws, shall be decided by a
majority of the votes cast at such meeting by the holders of shares present
in
person or represented by proxy and entitled to vote thereon, whether or not
a
quorum is present when the vote is taken. All elections of directors shall
be by
written ballot unless otherwise provided in the Certificate of Incorporation.
In
voting on any other question on which a vote by ballot is required by law or
is
demanded by any stockholder entitled to vote, the voting shall be by ballot.
Each ballot shall be signed by the stockholder voting or by his proxy, and
shall
state the number of shares voted. On all other questions, the voting may be
viva
voce. Every stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting
may
authorize another person or persons to act for him by proxy. The validity and
enforceability of any proxy shall be determined in accordance with Section
212
of the General Corporation Law.
2.11.
Selection
and Duties of Inspectors at Meetings of Stockholders
. The Board, in advance
of any meeting of stockholders, may appoint one or more inspectors to act at
the
meeting of any adjournment thereof. If inspectors are not so appointed, the
person presiding at such meeting may, and on the request of any stockholder
entitled to vote thereat, shall appoint one or more inspectors. In case any
person appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board in advance of the meeting or at the meeting by
the
person presiding thereat. Each inspector, before entering upon the discharge
of
his duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best
of
his ability. The inspector or inspectors shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determining the result, and do such acts as are proper
to
conduct the election or vote with fairness to all stockholders. On request
of
the person presiding at the meeting or any stockholder entitled to vote thereat,
the inspector or inspectors shall make a report in writing of any challenge,
question or matter determined by him or them and execute a certificate of any
fact found by him or them. Any report or certificate made by the inspector
or
inspectors shall be prima facie evidence of the facts stated and of the vote
as
certified by him or them.
2.12.
Organization
.
At every meeting of stockholders, the Chairman, or in the absence of the
Chairman, a Vice Chairman, if one is elected, or, in the absence of a Vice
Chairman, the President, shall act as Chairman of the meeting. In case none
of
the Corporate Officers above designated to act as Chairman or Secretary of
the
meeting, respectively, shall be present, a chairman or a secretary of the
meeting, as the case may be, shall be chosen by a majority of the votes cast
at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
2.13.
Order
of
Business
. The order of business at all meetings of stockholders shall be as
determined by the chairman of the meeting.
2.14.
Written
Consent of Stockholders Without a Meeting
. Any action required to be taken
at any annual or special meeting of stockholders, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be (1) signed
and
dated by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at
a
meeting at which all shares entitled to vote thereon were present and voted
and
(2) delivered to the Corporation within sixty (60) days of the earliest dated
consent by delivery to its registered office in the State of Delaware (in which
case delivery shall be by hand or by certified or registered mail, return
receipt requested), its principal place of business, or an officer or agent
of
the Corporation having custody of the book in which proceedings of meetings
of
stockholders are recorded. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to
those
stockholders who have not consented in writing.
ARTICLE
3
DIRECTORS
3.1.
General
Powers
. Except as otherwise provided in the Certificate of Incorporation,
the business and affairs of the Corporation shall be managed by or under the
direction of the Board. The Board may adopt such rules and regulations, not
inconsistent with the Certificate of Incorporation or the By-Laws or applicable
laws, as it may deem proper for the conduct of its meetings and the management
of the Corporation. In addition to the powers expressly conferred by the
By-Laws, the Board may exercise all powers and perform all acts which are not
required, by the By-Laws or the Certificate of Incorporation by law, to be
exercised and performed by the stockholders.
3.2.
Number;
Qualification; Term of Office
. The Board shall consist of one or more
members. The number of directors may be changed from time to time by action
of
the Board. Directors need not be stockholders. Each director shall hold office
until his successor is elected and qualified or until his earlier death,
resignation or removal.
3.3.
Election
.
Directors shall, except as otherwise required by law or by the Certificate
of
Incorporation, be elected by a majority of the votes cast at a meeting of
stockholders by the holders of shares entitled to vote in the
election.
3.4.
Newly
Created Directorships and Vacancies
. Unless otherwise provided in the
Certificate of Incorporation, newly created directorships resulting from an
increase in the number of directors and vacancies occurring in the Board for
any
other reason, including the removal of directors without cause may 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 may be elected by a majority of the votes
cast by the holders of shares of capital stock entitled to vote in the election
at a special meeting of stockholders called for that purpose. A director elected
to fill a vacancy shall be elected to hold office until his successor is elected
and qualified, or until his earlier death, resignation or removal.
3.5.
Resignations
.
Any director may resign at any time by written notice to the Chairman, or in
the
absence of the Chairman, the Secretary. Such resignation shall take effect
at
the time therein specified, and, unless otherwise specified, the acceptance
of
such resignation shall not be necessary to make it effective.
3.6.
Removal
of Directors
. Subject to the provisions of Section 141(k) of the General
Corporation Law, any or all of the directors may be removed with or without
cause, by the holders of shares representing a majority of the Votes of the
Total Outstanding Shares then entitled to vote at an election of
directors.
3.7.
Compensation
.
Each director, in consideration of his service as such, shall be entitled to
receive from the Corporation such amount per annum, if any, or such fees, if
any, for attendance at directors’ meetings, or both, as the Board may from time
to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each director
who shall serve as a member of any committee of directors in consideration
of
his serving as such shall be entitled to such additional amount per annum,
if
any, or such fees, if any, for attendance at committee meetings, or both, as
the
Board may from time to time determine, together with reimbursement for the
reasonable expenses incurred by him in the performance of his duties. Nothing
contained in this section shall preclude any director from serving the
Corporation or its subsidiaries in any other capacity and receiving proper
compensation therefor.
3.8.
Place
and
Time of Meetings of the Board
. Meetings of the Board, regular or special,
may be held at any place within or without the State of Delaware. The times
and
places for holding meetings of the Board may be fixed from time to time by
resolution of the Board (unless contrary to resolution of the Board) in the
notice of the meeting.
3.9.
Annual
Meetings
. On the day when and at the place where the annual meeting of
stockholders for the election of directors is held, and as soon as practicable
thereafter, the Board may hold its annual meeting, without notice of such
meeting, for the purposes of organization, the election of officers and the
transaction of other business. The annual meeting of the Board may be held
at
any other time and place specified in a notice given as provided in Section
3.11
of the By-Laws for special meetings of the Board or in a waiver of notice
thereof.
3.10.
Regular
Meetings
. Regular meetings of the Board may be held at such times and places
as may be fixed from time to time by the Board. Unless otherwise required by
the
Board, regular meetings of the Board may be held without notice. If any day
fixed for a regular meeting of the Board shall be a Saturday or Sunday or a
legal holiday at the place where such meeting is to be held, then such meeting
shall be held at the same hour at the same place on the first business day
thereafter, which is not a Saturday, Sunday or legal holiday.
3.11.
Special
Meetings
. Special meetings of the Board shall be held whenever called by the
Chairman, the Chief Executive Officer or by a majority of the Full Board. Notice
of each special meeting of the Board (and of each regular meeting for which
notice shall be required) shall, if mailed, be addressed to each director at
the
address designated by him for that purpose or, if none is designated, at his
last known address at least two days before the date on which the meeting is
to
be held; or such notice shall be sent to each director at such address by
telegraph, cable, telex, Telecopier or similar means, or be delivered to him
personally, or be given to him by telephone or other similar means not later
than the day before the date on which such meeting is to be held. Every such
notice shall state the time and place of the meeting, but need not state the
purposes of the meeting, except to the extent required by law. If mailed, each
notice shall be deemed given two days after it is deposited, with postage
thereon prepaid, in a post office or official depository under the exclusive
care and custody of the United States Post Office Department. Such mailing
shall
be by first class mail. If notice is given by telegraph, cable, telex,
Telecopier or similar means, such notice shall be deemed given when so delivered
or transmitted.
3.12.
Adjourned
Meetings
. A majority of the directors present at any meeting of the Board,
including an adjourned meeting, whether or not a quorum is present, may adjourn
such meeting to another time and place. Notice of any adjourned meeting of
the
Board need not be given to any director whether or not present at the time
of
the adjournment. Any business may be transacted at any adjourned meeting that
might have been transacted at the meeting as originally called.
3.13.
Waiver
of
Notice
. Whenever notice is required to be given to any director or member of
a committee of directors under any provision of the General Corporation Law
or
of the Certificate of Incorporation or By-Laws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. 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 directors, or members of
a
committee of directors, need be specified in any written waiver of
notice.
3.14.
Organization
.
At each meeting of the Board, the Chairman, or in the absence of the Chairman,
the Vice Chairman, if one is elected, or in the absence of the Vice Chairman,
the Chief Executive Officer, or in the absence of the Chief Executive Officer,
a
chairman chosen by a majority of the directors present, shall preside. The
Secretary shall act as secretary at each meeting of the Board. In case the
Secretary shall be absent from any meeting of the Board, an Assistant Secretary
shall perform the duties of secretary at such meeting; and in the absence from
any such meeting of the Secretary and all Assistant Secretaries, the person
presiding at the meeting may appoint any person to act as secretary of the
meeting.
3.15.
Quorum
of
Directors
. A majority of the Full Board shall constitute a quorum for the
transaction of business or of any specified item of business at any meeting
of
the Board, and, except as otherwise expressly required by the General
Corporation Law or the Certificate of Incorporation or these By-Laws, the act
of
a majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board. In the event one or more of the directors shall
be disqualified to vote at any meeting, then the required quorum shall be
reduced by one for each such director so disqualified; provided, however, that
in no case shall less than one-third (1/3) of the number so fixed constitute
a
quorum. In the absence of a quorum at any meeting of the Board, a majority
of
the directors present thereat may adjourn such meeting to another time and
place. Notice of the time and place of any such adjourned meeting shall be
given
to all of the directors unless such time and place were announced at the meeting
at which the adjournment was taken, in which case such notice shall only be
given to the directors who were not present thereat. At any adjourned meeting
at
which a quorum is present, any business may be transacted which might have
been
transacted at the meeting as originally called. The directors shall act only
as
a Board and the individual directors shall have no power as such.
3.16.
Action
by
the Board
. All corporate action taken by the Board or any committee thereof
shall be taken at a meeting of the Board, or of such committee, as the case
may
be, except that 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. Members of the Board, or any committee designated
by
the Board, may participate in a meeting of the Board, or of such committee,
as
the case may be, 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 pursuant to this Section 3.16 shall
constitute presence in person at such meeting.
ARTICLE
4
COMMITTEES
OF THE BOARD
4.1.
Committees
.
The Board may, by resolution passed by a majority of the Full Board, designate
one or more committees, each committee to consist of one or more of the
directors of the Corporation. Such committees, members thereof and alternate
and
replacement members may be proposed by the Chairman, subject to approval by
a
majority of the Full Board. Each such committee shall serve at the pleasure
of
the Board. 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. 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 By-Laws of the Corporation; and, unless the
resolution designating it expressly so provides or the Certificate of
Incorporation or these By-Laws so provides, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance of
stock.
4.2.
Executive
Committee
. When the Board is not in session, the Executive Committee shall
have and may exercise all of the authority of the Board, except to the extent
that such authority shall be limited by the resolution establishing the
Executive Committee and the General Corporation Law.
4.2.1
Tenure
and Qualifications
. Each member of the Executive Committee shall hold office
until the next regular meeting of the Board following his designation and until
his successor is designated as a member of the Executive Committee and is
qualified or until his earlier death, resignation or removal.
4.2.2
Meetings
.
Regular meetings of the Executive Committee may be held without notice at such
times and places as the Executive Committee may fix from time to time. The
Chairman, or in the absence of the Chairman, such other member of the Executive
Committee as designated by the Executive Committee shall preside at all
meetings. Special meetings of the Executive Committee may be called by any
member thereof upon such notice as provided in Section 3.11. Such notice shall
be deemed to be given as provided in Section 3.11. Any member of the Executive
Committee may waive notice of any meeting and no notice of any meeting need
be
given to any member thereof who attends in person. The notice of a meeting
of
the Executive Committee need not state the business proposed to be transacted
at
the meeting.
4.2.3
Quorum
.
A majority of the members of the Executive Committee shall constitute a quorum
for the transaction of business or of any specified item of business at any
meeting thereof, and except as otherwise expressly required by the General
Corporation Law or the Certificate of Incorporation or these By-Laws, the act
of
a majority of the members present at any meeting at which a quorum is present
shall be the act of the Executive Committee.
4.2.4
Action
Without a Meeting
. Any action required or permitted to be taken by the
Executive Committee at any meeting may be taken without a meeting if all of
the
members of the Executive Committee consent thereto, in writing, and the writing
or writings are filed with the minutes of proceedings of the Executive
Committee. Members of the Executive Committee may participate in a meeting
by
means of conference telephone or similar communications equipment by means
of
which all persons participating in the meeting can hear each other.
4.2.5
Vacancies
.
The Chairman may propose to fill, subject to approval by a majority of the
Full
Board, and the Board may fill by resolution adopted by a majority of the Full
Board, any vacancy in the Executive Committee.
4.2.6
Resignations
and Removal
. Any member of the Executive Committee may be removed at any
time, with or without cause by resolution adopted by a majority of the Full
Board. Any member of the Executive Committee may resign at any time from the
Executive Committee by giving written notice to the Chairman or, in the absence
of the Chairman, the Secretary. Such resignation shall take effect at the time
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective.
4.3.
Other
Committees
. The tenure and qualifications of the members of each other
committee; the time, place and organization of such committee’s meetings; the
notice required to call any such meeting; the number of members of each such
committee that shall constitute a quorum; the affirmative vote of the committee
members required effectively to take action at any meeting at which a quorum
is
present; the action that any such committee can take without a meeting; the
method in which a vacancy among the members of such committee can be filled
and
the procedures by which resignations and removals of members of such committee
shall be acted upon or accomplished shall be fixed by the resolution adopted
by
the Board relative to such matters. In the absence of such resolutions, Sections
4.2.1 through 4.2.6 shall apply to each such committee as if such committee
were
the Executive Committee.
ARTICLE
5
OFFICERS
5.1.
Officers
.
The Board shall elect a Chairman, a President, a Secretary and a Treasurer,
and
may elect one or more Vice Chairmen, Vice Presidents and such other Corporate
Officers and other officers as it may determine. The Board may designate the
standing, seniority or area of special competence of the Vice Presidents elected
or appointed by it. Each officer shall hold his office until his successor
is
elected and qualified or until his earlier death, resignation or removal in
the
manner provided in Section 5.2 of the By-Laws. Any two or more offices may
be
held by the same person. All officers 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 the By-Laws or as the Board may from time
to
time determine.
5.2.
Removal
of Officers
. Any officer elected by the Board may be removed by the Board
with or without cause. The removal of an officer without cause shall be without
prejudice to his contract rights, if any. The election or appointment of an
officer shall not of itself create contract rights.
5.3.
Resignations
.
Any Vice President who is a Corporate Officer may resign at any time by so
notifying the Board or the President. Any other Corporate Officer may resign
at
any time by so notifying the Board or the Chairman. Any other officer may resign
at any time by so notifying the person to whom he reports. Such resignation
shall take effect at the date of receipt of such notice or at such later time
as
is therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective. The resignation of
an
officer shall be without prejudice to the contract rights of the Corporation,
if
any.
5.4.
Vacancies
.
A vacancy in any office because of death, resignation, removal, disqualification
or any other cause shall be filled for the unexpired portion of the term in
the
manner prescribed in the By-Laws for the regular election or appointment to
such
office.
5.5.
Compensation
.
Salaries or other compensation of the officers may be fixed from time to time
by
the Board. No officer shall be prevented from receiving a salary or other
compensation by reason of the fact that he is also a director.
5.6.
Chairman
.
The Chairman, if one shall have been elected, shall be a member of the Board,
a
Corporate Officer and, if present, shall preside at each meeting of the Board,
the Executive Committee and the stockholders. The Chairman also shall perform
such duties as from time to time may be assigned to him by the
Board.
5.7.
President
.
The President shall perform all duties incident to the office of President
and
such other duties as from time to time may be assigned to him by the Board.
He
may, with the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer, sign certificates for shares of capital stock of the
Corporation. Subject to the provisions of Section 6.2, he may sign and execute
in the name of the Corporation deeds, mortgages, bonds, contracts and other
instruments, except in cases where the signing and execution thereof shall
be
expressly delegated by the Board or by the By-Laws to some other officer or
agent of the Corporation, or shall be required by law otherwise to be signed
or
executed. In the absence of inability to act of the President, the Chairman,
or,
in his absence or inability to act, such Corporate Officer or Corporate Officers
as designated by the Board, shall perform all of the duties of the President
and
so acting shall have all of the powers of and be subject to all restrictions
upon the President.
5.8.
Chief
Executive Officer
. The Chief Executive Officer, if one shall have been
elected by the Board, may, at the discretion of the Board, in general, supervise
and control the affairs and business of the Corporation, subject to control
by
the Board. Otherwise, the Chief Executive Officer shall perform such duties
as
from time to time may be assigned to him by the Board; and, in general, shall
perform all duties incident to the office of the Chief Executive
Officer.
5.9.
Vice
Presidents
. Each Vice President shall perform such duties as from time to
time may be assigned to him by the Board, or by the President to the extent
not
inconsistent with assignments or directions of the Board. Any Vice President
may
also, with the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer, sign certificates for shares of capital stock of the
Corporation; may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts or other instruments authorized by the Board, except
in cases where the signing and execution thereof shall be expressly delegated
by
the Board or by the By-Laws to some other officer or agent of the Corporation,
or shall be required by law otherwise to be signed or executed.
5.10.
Secretary
.
The Secretary, if present, shall act as secretary of all meetings of the
stockholders and of the Board, and shall keep the minutes thereof in the
property book or books to be provided for that purpose; he shall see that all
notices required to be given by the Corporation are duly given and served;
he
may, with the President or a Vice President, sign certificates for shares of
capital stock of the Corporation; he shall be custodian of the seal of the
Corporation and may seal with the seal of the Corporation, or a facsimile
thereof, all certificates for shares of capital stock of the Corporation and
all
documents, the execution of which on behalf of the Corporation under its
corporate seal is authorized in accordance with the provisions of the By-Laws;
he shall have charge of the stock ledger and also of the other books, records
and papers of the Corporation relating to its organization and management as
a
Corporation, and shall see that the reports, statements and other documents
required by law are properly kept and filed; and shall, in general, perform
all
the duties incident to the office of Secretary and such other duties as from
time to time may be assigned to him by the Board, or by the President to the
extent not inconsistent with assignments or directions of the
Board.
5.11.
Treasurer
.
The Treasurer shall have charge and custody of , and be responsible for, all
funds, securities and notes of the Corporation; receive and give receipts for
monies due and payable to the Corporation from any sources whatsoever; deposit
all such monies in the name of the Corporation in such banks, trust companies
or
other depositaries as shall be authorized by the Board and selected in
accordance with these By-Laws; against proper vouchers, cause such funds to
be
disbursed by checks or drafts on the authorized depositaries of the Corporation
signed in such manner as shall be determined in accordance with any provisions
of the By-Laws, and may be responsible for the accuracy of the amounts of all
monies so disbursed; regularly enter or cause to be entered in books to be
kept
by him or under his direction full and adequate account of all monies received
or paid by him for the account of the Corporation; have the right to require,
from time to time, reports or statements giving such information as he may
desire with respect to any and all financial transactions of the Corporation
from the officers or agents transacting the same; render to the Chief Executive
Officer or the Board, whenever the Chief Executive Officer or the Board,
respectively, shall require him so to do, an account of the financial condition
of the Corporation and of all his transactions as Treasurer; exhibit at all
reasonable times his books of account and other records to any of the directors
upon application at the office of the Corporation where such books and records
are kept; and, in general, perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to him
by
the Board, or by the President to the extent not inconsistent with assignments
or directions of the Board; and he may sign with the President or a Vice
President certificates for shares of capital stock of the
Corporation.
5.12.
Assistant
Secretaries and Assistant Treasurers
. Assistant Secretaries and Assistant
Treasurers shall perform such duties as shall be assigned to them by the
Secretary or by the Treasurer, respectively, or by the Board, or by the
President to the extent not inconsistent with assignments or directions of
the
Board. Assistant Secretaries and Assistant Treasurers may, with the President
or
a Vice President, sign certificates for shares of capital stock of the
Corporation.
ARTICLE
6
CONTRACTS,
CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
6.1.
Execution
of Contracts
. The Board may authorize any officer, employee or agent, in the
name and on behalf of the Corporation, to enter into any contract or execute
and
satisfy any instrument, and any such authority may be general or confined to
specific instances, or otherwise limited.
6.2.
Loans
.
The President or any other officer, employee or agent, when and to the extent
authorized by the Board, may effect loans and advances at any time for the
Corporation from any bank, trust company or other institutions or from any
firm,
corporation or individual and for such loans and advances may make, execute
and
deliver promissory notes, bonds or other certificates or evidences of
indebtedness of the Corporation, and, when authorized by the Board so to do,
may
pledge and hypothecate or transfer any securities or other property of the
Corporation as security for any such loans or advances. Such authority conferred
by the Board may be general or confined to specific instances or otherwise
limited.
6.3.
Checks,
Drafts, Etc
. All checks, drafts and other orders for the payment of money
out of the funds of the Corporation and all notes or other evidences of
indebted-ness of the Corporation shall be signed on behalf of the Corporation
in
such manner as shall from time to time be determined by resolution of the
Board.
6.4.
Deposits
.
The funds of the Corporation not otherwise employed shall be deposited from
time
to time to the order of the Corporation in such banks, trust companies or other
depositaries as the Board may select or as may be selected by an officer,
employee or agent of the Corporation to whom such power may from time to time
be
delegated by the Board.
ARTICLE
7
STOCK
AND DIVIDENDS
7.1.
Certificates
Representing Shares
. Every holder of shares in this Corporation
may be entitled to have a certificate in such form as may be prescribed by
law
and by the Board, certifying the number and class of shares owned by such holder
in the corporation, unless the Board approves by resolution that shares may
also
be uncertificated consistent with the General Corporation
Law. Certificates shall be signed by the President or a Vice
President and by the Secretary or an Assistant Secretary or the Treasurer or
an
Assistant Treasurer, and may be sealed with the seal of the Corporation or
a
facsimile thereof. 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 any certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, such certificate may, unless otherwise ordered by the Board, be issued
by the Corporation with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
7.2.
Transfer
of Shares
. Transfers of shares of capital stock of the Corporation shall be
made only on the books of the Corporation by the holder thereof or by his duly
authorized attorney appointed by a power of attorney duly executed and filed
with the Secretary or a transfer agent of the Corporation, and on surrender
of
the certificate or certificates representing such shares of capital stock
properly endorsed for transfer and upon payment of all necessary transfer taxes.
Every certificate exchanged, returned or surrendered to the Corporation shall
be
marked “Canceled,” with the date of cancellation, by the Secretary or an
Assistant Secretary or the transfer agent of the Corporation. A person in whose
name shares of capital stock shall stand on the books of the Corporation shall
be deemed the owner thereof to receive dividends, to vote as such owner and
for
all other purposes as respects the Corporation. No transfer of shares of capital
stock shall be valid as against the Corporation, its stockholders and creditors
for any purpose, except to render the transferee liable for the debts of the
Corporation to the extent provided by law, until such transfer shall have been
entered on the books of the Corporation by an entry showing from and to whom
transferred.
7.3.
Transfer
and Registry Agents
. The Corporation may from time to time maintain one or
more transfer offices or agents and registry offices or agents at such place
or
places as may be determined from time to time by the Board.
7.4.
Lost,
Destroyed, Stolen and Mutilated Certificates
. The holder of any shares of
capital stock of the Corporation shall immediately notify the Corporation of
any
loss, destruction, theft or mutilation of the certificate representing such
shares, and the Corporation may issue a new certificate to replace the
certificate alleged to have been lost, destroyed, stolen or mutilated. The
Board
may, in its discretion, as a condition to the issue of any such new certificate,
require the owner of the lost, destroyed, stolen or mutilated certificate,
or
his legal representatives, to make proof satisfactory to the Board of such
loss,
destruction, theft or mutilation and to advertise such fact in such manner
as
the Board may require, and to give the Corporation and its transfer agents
and
registrars, or such of them as the Board may require, a bond in such form,
in
such sums and with such surety or sureties as the Board may direct, to indemnify
the Corporation and its transfer agents and registrars against any claim that
may be made against any of them on account of the continued existence of any
such certificate so alleged to have been lost, destroyed, stolen or mutilated
and against any expense in connection with such claim.
7.5.
Regulations
.
The Board may make such rules and regulations as it may deem expedient, not
inconsistent with the By-Laws or with the Certificate of Incorporation,
concerning the issue, transfer and registration of certificates representing
shares of its capital stock.
ARTICLE
8
INDEMNIFICATION
8.1.
Actions
other than by or in the Right of the Corporation
. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or
in
the right of the Corporation) by reason of the fact that he 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, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection
with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests
of
the Corporation, and, with respect to any criminal action or proceedings, had
no
reasonable cause to believe his or her conduct was unlawful. The termination
of
any action, suit or proceeding by judgment, order, settlement, conviction,
or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create
a
presumption that the person did not act in good faith and in a manner which
he
or she reasonably believed to be in or not opposed to the best interests of
the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
8.2.
Actions
by or in the Right of the Corporation
. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor 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, partnership, joint venture, trust,
or
other enterprise against expenses (including attorneys’ fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of
any
claim, issue or matter as to which such person shall have been adjudged to
be
liable to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit
was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of
Chancery of the State of Delaware or such other court shall deem
proper.
8.3.
Success
on the Merits
. To the extent that any person described in Section 8.1 or
Section 8.2 has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in said Sections, or in defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred by him or her in
connection therewith.
8.4.
Specific
Authorization
. Any indemnification under Section 8.1 or Section 8.2 (unless
ordered by a court) shall be made by the Corporation only as authorized in
the
specific case upon a determination that indemnification of any person described
in said Sections is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in said Sections. Such determination
shall be made (1) by the Board by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders of the Corporation.
8.5.
Advance
Payment
. Expenses incurred in defending any civil, criminal, administrative,
or investigative action, suit or proceeding may be paid by the Corporation
in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of any person described in said Section to
repay such amount if it shall ultimately be determined that he or she is not
entitled to indemnification by the Corporation as authorized in this
Article.
8.6.
Non-Exclusivity
.
The indemnification and advancement of expenses provided by, or granted pursuant
to, the other Sections of this Article shall not be deemed exclusive of any
other rights to which those provided indemnification or advancement of expenses
may be entitled under the Certificate of Incorporation or any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in such person’s official capacity and as to action in another capacity while
holding such office.
8.7.
Insurance
.
The Board may authorize, by a vote of the majority of the full board, the
Corporation to purchase and maintain insurance 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 liability asserted against him or her and incurred by
him
or her in any such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or her
against such liability under the provisions of this Article.
8.8.
Continuation
of Indemnification and Advancement of Expenses
. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall
continue as to a person who has ceased to be a director, officer, employee
or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
8.9.
Severability
.
If any word, clause or provision of this Article or any award made hereunder
shall for any reason be determined to be invalid, the provisions hereof shall
not otherwise be affected thereby but shall remain in full force and
effect.
8.10.
Intent
of
Article
. The intent of this Article is to provide for indemnification and
advancement of expenses to the fullest extent permitted by Section 145 of the
General Corporation Law of Delaware. To the extent that such Section or any
successor section may be amended or supplemented from time to time, this Article
shall be amended automatically and construed so as to permit indemnification
and
advancement of expenses to the fullest extent from time to time permitted by
law.
ARTICLE
9
BOOKS
AND RECORDS
9.1.
Books
and
Records
. The Corporation shall keep correct and complete books and records
of account and shall keep minutes of the proceedings of the stockholders, the
Board and any committee of the Board. The Corporation shall keep at the office
designated in the Certificate of Incorporation or at the office of the transfer
agent or registrar of the Corporation, a record containing the names and
addresses of all stockholders, the number and class of shares held by each
and
the dates when they respectively became the owners of record
thereof.
9.2.
Form
of
Records
. Any records maintained by the Corporation in the regular course of
its business, including its stock ledger, books of account, and minute books,
may be kept on, or be in the form of, punch cards, magnetic tape, photographs,
microphotographs, or any other information storage device, provided that the
records so kept can be converted into clearly legible written form within a
reasonable time. The Corporation shall so convert any records so kept upon
the
request of any person entitled to inspect the same.
9.3.
Inspection
of Books and Records
. Except as otherwise provided by law, the Board shall
determine from time to time whether, and, if allowed, when and under what
conditions and regulations, the accounts, books, minutes and other records
of
the Corporation, or any of them, shall be open to the inspection of the
stockholders.
ARTICLE
10
SEAL
The
Board
may adopt a corporate seal which shall be in the form of a circle and shall
bear
the full name of the Corporation, the year of its incorporation and the word
“Delaware”.
ARTICLE
11
FISCAL
YEAR
The
fiscal
year of the Corporation shall be determined, and may be changed, by resolution
of the Board.
ARTICLE
12
VOTING
OF SHARES HELD
Unless
otherwise provided by resolution of the Board, the Chairman or the Chief
Executive Officer may, from time to time, appoint one or more attorneys or
agents of the Corporation, in the name and on behalf of the Corporation, to
cast
the votes which the Corporation may be entitled to cast as a stockholder or
otherwise in any other corporation, any of whose shares or securities may be
held by the Corporation, at meetings of the holders of stock or other securities
of such other corporation, or to consent in writing to any action by any such
other corporation, and may instruct the person or persons so appointed as to
the
manner of casting such votes or giving such consent, and may execute or cause
to
be executed on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or other instruments as
he
may deem necessary or proper in the premises; or the Chairman or the Chief
Executive Officer may himself attend any meeting of the holders of the stock
or
other securities of any such other corporation and thereat vote or exercise
any
or all other powers of the Corporation as the holder of such stock or other
securities of such other corporation.
ARTICLE
13
AMENDMENTS
The
By-laws
may be altered, amended, supplemented or repealed, or new By-laws may be
adopted, by vote of the holders of shares representing a majority of the Votes
of the Total Outstanding Shares or by the vote of two-thirds of the Full Board,
when such power is conferred upon the Board by the Certificate of Incorporation,
at any meeting of the stockholders or of the Board, provided notice of the
proposed change was given in the notice of the meeting or, in the case of a
meeting of the Board, in a notice given not less than two (2) days prior to
the
meeting.
ARTICLE
14
MISCELLANEOUS
Unless
the
context specifically requires otherwise, any references in these By-laws to
any
gender shall include all genders; any reference to the singular shall include
the plural; and any reference to the plural shall include the
singular.