SECOND
AMENDED
AND RESTATED
BY-LAWS
OF
CLEVELAND
BIOLABS, INC.
(Amended
and Restated effective as of December 4, 2007)
Cleveland
BioLabs, Inc. is hereinafter referred to as the “Corporation.”
ARTICLE
I
OFFICES
Section
1. PRINCIPAL
OFFICE.
The
principal office of the Corporation shall be located at such place or places
as
the Board of Directors may designate.
Section
2. ADDITIONAL
OFFICES.
The
Corporation may have additional offices at such places as the Board of Directors
may from time to time determine or the business of the Corporation may
require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
Section
1. PLACE.
All
meetings of stockholders shall be held at the principal office of the
Corporation or at such other place within the United States as shall be stated
in the notice of the meeting.
Section
2. ANNUAL
MEETING.
An
annual meeting of the stockholders for the election of directors and the
transaction of any business within the powers of the Corporation shall be
held
on a date and at the time designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly executed waiver of notice
of the meeting.
Section
3. SPECIAL
MEETINGS.
The
Chairman of the Board or Board of Directors may call special meetings of
the
stockholders. No business shall be conducted at a special meeting of
stockholders except for such business as shall have been brought before the
meeting pursuant to the notice of special meeting. The ability of stockholders
to call special meetings is specifically denied.
Section
4. NATURE
OF BUSINESS AT ANNUAL MEETINGS.
No
business may be transacted at an annual meeting of stockholders other than
business that is (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors (or any duly
authorized committee thereof), (b) otherwise properly brought before the
annual
meeting by or at the direction of the Board of Directors (or any duly authorized
committee thereof), or (c) otherwise properly brought before the annual meeting
by any stockholder of the Corporation (i) who is a stockholder of record
on the
date of the giving of the notice provided for in this Section 4 and on the
record date for the determination of stockholders entitled to notice of and
to
vote at such annual meeting and (ii) who complies with the notice procedures
set
forth in this Section 4.
In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a stockholder, such stockholder must
have
given timely notice thereof in proper written form to the secretary of the
Corporation. To be timely, a stockholder’s notice to the secretary must be
delivered to or mailed and received at the principal executive offices of
the
Corporation not less than ninety (90) days nor more than one hundred twenty
(120) days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided,
however,
that in
the event that the annual meeting is called for a date that is not within
thirty
(30) days before or after such anniversary date, notice by the stockholder
in
order to be timely must be so received not later than the close of business
on
the tenth (10th)
day
following the day on which such notice of the date of the annual meeting
was
mailed or public disclosure of the date of the annual meeting was made,
whichever first occurs. To be in proper written form, a stockholder’s notice to
the secretary must set forth as to each matter such stockholder proposes
to
bring before the annual meeting (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of such
stockholder, (iii) the class or series and number of shares of capital stock
of
the Corporation that are beneficially owned or of record by such stockholder,
(iv) a description of all arrangements or understandings between such
stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business and (v) a representation
that such stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and that such stockholder intends to appear in person
or
by proxy at the annual meeting to bring such business before the meeting.
In
addition, notwithstanding anything in this Section 4 to the contrary, a
stockholder intending to nominate one or more persons for election as a director
at an annual or special meeting of stockholders must comply with Section
5 of
Article II of these By-Laws for such nominations to be properly brought before
such meeting.
No
business shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting in accordance with the procedures
set
forth in this Section 4; provided,
however,
that
once business has been properly brought before the annual meeting in accordance
with such procedures, nothing in this Section 4 shall be deemed to preclude
discussion by any stockholder of any such business. If the chairman of an
annual
meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the business was not properly brought before the meeting
and
such business shall not be transacted.
Section
5. NOMINATION
OF DIRECTORS.
Only
persons who are nominated in accordance with the following procedures shall
be
eligible for election as directors of the Corporation, except as may be
otherwise provided in the Certificate of Incorporation with respect to the
right
of holders of preferred stock of the Corporation to nominate and elect a
specified number of directors in certain circumstances. Nominations of persons
for election to the Board of Directors may be made at any annual meeting,
or at
any special meeting of Stockholders called for the purpose of electing
directors, (a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (b) by any stockholder of the Corporation
(i)
who is a stockholder of record on the date of the giving of the notice provided
for in this Section 5 and on the record date for the determination of
stockholders entitled to notice of and to vote at such meeting and (ii) who
complies with the notice procedures set forth in this Section 5.
In
addition to any other applicable requirements, for a nomination to be made
by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the secretary of the Corporation. To be timely, a stockholder’s
notice to the secretary must be delivered to or mailed and received at the
principal executive offices of the Corporation (a) in the case of an annual
meeting, not less than ninety (90) days nor more than one hundred twenty
(120)
days prior to the anniversary date of the immediately preceding annual meeting
of Stockholders; provided, however, that in the event that the annual meeting
is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be
so
received not later than the close of business on the tenth (10th) day following
the date on which such notice of the date of the annual meeting was mailed
or
such public disclosure of the date of the annual meeting was made, whichever
first occurs; and (b) in the case of a special meeting of Stockholders called
for the purpose of electing directors, not later than the close of business
on
the tenth (10th) day following the day on which notice of the date of the
special meeting was mailed or public disclosure of the date of the special
meeting was made, whichever first occurs. To be in proper written form, a
stockholder’s notice to the secretary must set forth (a) as to each person whom
the stockholder proposes to nominate for election as a director (i) the name,
age, business address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class or series and number
of
shares of capital stock of the Corporation that are owned beneficially or
of
record by the person and (iv) any other information relating to the person
that
would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended
(the
“Exchange Act”), and the rules and regulations promulgated thereunder; and (b)
as to the stockholder giving the notice (i) the name and record address of
such
stockholder, (ii) the class or series and number of shares of capital stock
of
the Corporation which are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made by such
stockholder, (iv) a representation that such stockholder is a holder of record
of stock of the Corporation entitled to vote at such meeting and that such
stockholder intends to appear in person or by proxy at the meeting to nominate
the persons named in its notice and (v) and other information relating to
such
stockholder that would be required to be disclosed in a proxy statement or
other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Exchange Act and the
rules
and regulations promulgated thereunder. Such notice must be accompanied by
a
written consent of each proposed nominee to being named as a nominee and
to
serve as a director if elected.
No
person
shall be eligible for election as a director of the Corporation unless nominated
in accordance with the procedures set forth in this Section 5. If the chairman
of the meeting determines that a nomination was not made in accordance with
the
foregoing procedures, the chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be
disregarded.
Section
6. NOTICE.
Not
less than ten (10) nor more than sixty (60) days before each meeting of
stockholders (unless otherwise required by law), the secretary shall give
to
each stockholder entitled to vote at such meeting, and to each stockholder
not
entitled to vote who is entitled to notice of the meeting, written or printed
notice stating the time and place of the meeting and, in the case of a special
meeting or as otherwise may be required by any statute, the purpose for which
the meeting is called, either by mail or by presenting it to such stockholder
personally or by leaving it at his residence or usual place of business.
If
mailed, such notice shall be deemed to be given when deposited in the United
States mail addressed to the stockholder at his post office address as it
appears on the records of the Corporation, with postage thereon
prepaid.
Section
7. ADJOURNMENTS.
Any
meeting of the stockholders may be adjourned from time to time to reconvene
at
the same or some other place, and, except as provided herein, notice need
not be
given of any such adjourned meeting if the time and place thereof are announced
at the meeting at which the adjournment is taken. At the adjourned meeting,
the
Corporation may transact any business that might have been transacted at
the
original meeting. If the adjournment is for more than thirty (30) days, or
if
after the adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting in accordance with the requirements of Section
6
of this Article II shall be given to each stockholder of record entitled
to
notice of and to vote at the meeting.
Section
8. QUORUM.
At any
meeting of stockholders, the presence in person or by proxy of stockholders
entitled to cast a majority of all the votes entitled to be cast at such
meeting
shall constitute a quorum; but this section shall not affect any requirement
under any statute or the Certificate of Incorporation of Corporation for
the
vote necessary for the adoption of any measure. If, however, such quorum
shall
not be present at any meeting of the stockholders, the stockholders entitled
to
vote at such meeting, present in person or by proxy, shall have the power
to
adjourn the meeting in accordance with Section 7 of this Article
II.
Section
9. VOTING..
A
plurality of all the votes cast at a meeting of stockholders duly called
and at
which a quorum is present shall be sufficient to elect a director. Each share
may be voted for as many individuals as there are directors to be elected
and
for whose election the share is entitled to be voted. A majority of the votes
cast at a meeting of stockholders duly called and at which a quorum is present
shall be sufficient to approve any other matter which may properly come before
the meeting, unless more than a majority of the votes cast is required by
statute or by the Certificate of Incorporation of the Corporation. Unless
otherwise provided in the Certificate of Incorporation, each outstanding
share,
regardless of class, shall be entitled to one vote on each matter submitted
to a
vote at a meeting of stockholders.
Section
10. PROXIES.
A
stockholder may vote the stock owned of record by him, either in person or
by
proxy executed in writing by the stockholder or by his duly authorized attorney
in fact. Such proxy shall be filed with the secretary of the Corporation
before
or at the time of the meeting. No proxy shall be valid after eleven months
from
the date of its execution, unless otherwise provided in the proxy. A stockholder
may authorize another person or persons to act for such stockholder as proxy
by
executing a writing containing such stockholder’s signature affixed to such
writing by any reasonable means, including, but not limited to,
facsimile.
Section
11. VOTING
OF STOCK BY CERTAIN HOLDERS.
Stock
registered in the name of a corporation, partnership, trust or other entity,
if
entitled to be voted, may be voted by the president or a vice president,
a
general partner or trustee thereof, as the case may be, or a proxy appointed
by
any of the foregoing individuals, unless some other person who has been
appointed to vote such stock pursuant to a bylaw or a resolution of the board
of
directors of such corporation or other entity or agreement of the partners
of a
partnership presents a certified copy of such bylaw, resolution or agreement,
in
which case such person may vote such stock. Any director or other fiduciary
may
vote stock registered in his name as such fiduciary, either in person or
by
proxy.
Shares
of
stock of the Corporation directly or indirectly owned by it shall not be
voted
at any meeting and shall not be counted in determining the total number of
outstanding shares entitled to be voted at any given time, unless they are
held
by it in a fiduciary capacity, in which case they may be voted and shall
be
counted in determining the total number of outstanding shares at any given
time.
The
Board
of Directors may adopt by resolution a procedure by which a stockholder may
certify in writing to the Corporation that any shares of stock registered
in the
name of the stockholder are held for the account of a specified person other
than the stockholder. The resolution shall set forth the class of stockholders
who may make the certification, the purpose for which the certification may
be
made, the form of certification and the information to be contained in it;
if
the certification is with respect to a record date or closing of the stock
transfer books, the time after the record date or closing of the stock transfer
books within which the certification must be received by the Corporation;
and
any other provisions with respect to the procedure which the Board of Directors
considers necessary or desirable. On receipt of such certification, the person
specified in the certification shall be regarded as, for the purposes set
forth
in the certification, the stockholder of record of the specified stock in
place
of the stockholder who makes the certification.
Section
12. LIST
OF STOCKHOLDERS ENTITLED TO VOTE.
The
officer of the Corporation who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten (10) days before every meeting of the
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 (10) days prior to the meeting (i) 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
or (ii) during ordinary business hours, at the principal place of business
of
the Corporation. 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. The stock ledger of the Corporation shall be
the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by this Section or the books of the Corporation,
or to
vote in person or by proxy at any meeting of the stockholders.
Section
13. RECORD
DATE.
In
order that the Corporation may determine the stockholders entitled to notice
of
or to vote at any meeting of the stockholders or any adjournment thereof,
the
Board of Directors 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 of Directors, and which record date shall not be more than sixty (60)
nor
less than ten (10) days before the date of such meeting. If no record date
is
fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of the stockholders shall be
at
the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of the stockholders
shall apply to any adjournment of the meeting; provided, however, that the
Board
of Directors may fix a new record date for the adjourned meeting in accordance
with Section 7 of this Article II.
Section
14. CONDUCT
OF MEETINGS.
The
Board of Directors of the Corporation may adopt by resolution such rules
and
regulations for the conduct of any meeting of the stockholders as it shall
deem
appropriate. Except to the extent inconsistent with such rules and regulations
as adopted by the Board of Directors, the chairman of any meeting of the
stockholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of
such
chairman, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation,
the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) the determination of when the polls shall open and close for
any
given matter to be voted on at the meeting; (iii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iv)
limitations on attendance at or participation in the meeting to stockholders
of
record of the Corporation, their duly authorized and constituted proxies
or such
other persons as the chairman of the meeting shall determine; (v) restrictions
on entry to the meeting after the time fixed for the commencement thereof;
and
(vi) limitations on the time allotted to questions or comments by
participants.
Section
15. INSPECTORS.
At any
meeting of stockholders, the chairman of the meeting may, or upon the request
of
any stockholder shall, appoint one or more persons as inspectors for such
meeting. Such inspectors shall ascertain and report the number of shares
represented at the meeting based upon their determination of the validity
and
effect of proxies, count all votes, report the results and perform such other
acts as are proper to conduct the election and voting with impartiality and
fairness to all the stockholders.
Each
report of an inspector shall be in writing and signed by him or by a majority
of
them if there is more than one inspector acting at such meeting. If there
is
more than one inspector, the report of a majority shall be the report of
the
inspectors. The report of the inspector or inspectors on the number of shares
represented at the meeting and the results of the voting shall be prima facie
evidence thereof.
ARTICLE
III
DIRECTORS
Section
1. GENERAL
POWERS; QUALIFICATIONS.
The
business and affairs of the Corporation shall be managed under the direction
of
its Board of Directors.
Section
2. NUMBER,
TENURE AND QUALIFICATIONS.
At any
regular meeting or at any special meeting called for that purpose, a majority
of
the entire Board of Directors may establish, increase or decrease the number
of
directors, provided that the number thereof shall never be less than the
minimum
number required by the Delaware General Corporation Law or the Certificate
of
Incorporation, and further provided that the tenure of office of a director
shall not be affected by any decrease in the number of directors.
Section
3. ANNUAL
AND REGULAR MEETINGS.
An
annual meeting of the Board of Directors shall be held immediately after
and at
the same place as the annual meeting of stockholders, no notice other than
this
By-Law being necessary. The Board of Directors may provide, by resolution,
the
time and place, either within or without the State of Delaware, for the holding
of regular meetings of the Board of Directors without other notice than such
resolution.
Section
4. SPECIAL
MEETINGS.
Special
meetings of the Board of Directors may be called by or at the request of
the
chairman of the board (or any co-chairman of the board if more than one),
president or by a majority of the directors then in office. The person or
persons authorized to call special meetings of the Board of Directors may
fix
any place, either within or without the State of Delaware, as the place for
holding any special meeting of the Board of Directors called by
them.
Section
5. NOTICE.
Notice
of any special meeting of the Board of Directors shall be given by written
notice delivered personally or mailed to each Director at his business or
residence address or by telephone. Personally delivered notices shall be
given
at least two days prior to the meeting. Notice by mail shall be given at
least
five days prior to the meeting. Telephone notice shall be given at least
24
hours prior to the meeting. If mailed, such notice shall be deemed to be
given
when deposited in the United States mail properly addressed, with postage
thereon prepaid. Telephone notice shall be deemed given when the Director
is
personally given such notice in a telephone call to which he is a party.
Neither
the business to be transacted at, nor the purpose of, any annual, regular
or
special meeting of the Board of Directors need be stated in the notice, unless
specifically required by statute or these By-Laws.
Section
6. QUORUM.
A
majority of the directors shall constitute a quorum for transaction of business
at any meeting of the Board of Directors, provided that, if less than a majority
of such directors are present at said meeting, a majority of the directors
present may adjourn the meeting from time to time without further notice,
and
provided further that if, pursuant to the Certificate of Incorporation of
the
Corporation or these By-Laws, the vote of a majority of a particular group
of
directors is required for action, a quorum must also include a majority of
such
group.
The
Board
of Directors present at a meeting which has been duly called and convened
may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough directors to leave less than a quorum.
Section
7. ORGANIZATION.
At each
meeting of the Board of Directors, the Chairman of the Board of Directors,
or,
in his or her absence, a director chosen by a majority of the directors present,
shall act as chairman. The secretary of the Corporation shall act as secretary
at each meeting of the Board of Directors. In case the secretary shall be
absent
from any meeting of the Board of Directors, 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 the assistant secretaries, the chairman
of the
meeting may appoint any person to act as secretary of the meeting.
Section
8. VOTING.
The
action of the majority of the directors present at a meeting at which a quorum
is present shall be the action of the Board of Directors, unless the occurrence
of a greater proportion is required for such action by applicable
statute.
Section
9. TELEPHONE
MEETINGS.
Directors may participate in a meeting by means of a conference telephone
or
similar communications equipment if all persons participating in the meeting
can
hear each other at the same time. Participation in a meeting by these means
shall constitute presence in person at the meeting.
Section
10. INFORMAL
ACTION BY DIRECTORS.
Any
action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting, if a consent in writing to such
action
is signed by each director and such written consent is filed with the minutes
of
proceedings of the Board of Directors.
Section
11. VACANCIES.
If for
any reason any or all the directors cease to be directors, such event shall
not
terminate the Corporation or affect these By-Laws or the powers of the remaining
directors hereunder. Any vacancy on the Board of Directors for any cause
other
than an increase in the number of directors shall be filled by a majority
of the
remaining directors, even if such majority is less than a quorum. Any vacancy
in
the number of directors created by an increase in the number of directors
shall
be filled by a majority vote of the Board of Directors, provided a quorum
is
present. Any individual so elected as director shall hold office for the
unexpired term of the director he is replacing.
Section
12. COMPENSATION.
Directors shall not receive any stated salary for their services as directors
but, by resolution of the Board of Directors, may receive fixed sums per
year
and/or per meeting and for any service or activity they performed or engaged
in
as directors. Directors may be reimbursed for expenses of attendance, if
any, at
each annual, regular or special meeting of the Board of Directors or of any
committee thereof and for their expenses, if any, in connection with any
service
or activity they performed or engaged in as directors; but nothing herein
contained shall be construed to preclude any directors from serving the
Corporation in any other capacity and receiving compensation
therefor.
Section
13. REMOVAL
OF DIRECTORS.
Unless
the Certificate of Incorporation of the Corporation provides otherwise, the
stockholders may, at any time, remove any director, with or without cause,
by
the affirmative vote of a majority of all the votes entitled to be cast on
the
matter.
Section
14. LOSS
OF DEPOSITS.
No
director shall be liable for any loss which may occur by reason of the failure
of the bank, trust company, savings and loan association, or other institution
with whom moneys or stock have been deposited.
Section
15. SURETY
BONDS.
Unless
required by law, no director shall be obligated to give any bond or surety
or
other security for the performance of any of his duties.
Section
16. RELIANCE.
Each
director, officer, employee and agent of the Corporation shall, in the
performance of his duties with respect to the Corporation, be fully justified
and protected with regard to any act or failure to act in reliance in good
faith
upon the books of account or other records of the Corporation, upon an opinion
of counsel or upon reports made to the Corporation by any of its officers
or
employees or by the adviser, accountants, appraisers or other experts or
consultants selected by the Board of Directors or officers of the Corporation,
regardless of whether such counsel or expert may also be a
director.
ARTICLE
IV
COMMITTEES
Section
1. NUMBER,
TENURE, QUALIFICATIONS, POWERS, MEETINGS.
The
Board of Directors may, by resolution passed by a majority of the whole Board
of
Directors, designate one or more committees, each committee to consist of
one or
more Directors of the Corporation. To the extent permitted by law or applicable
rules or regulations, the Board of Directors may designate one or more persons
who are not Directors as additional members of any committee, but such persons
shall be nonvoting members of such committee. To the extent permitted by
law or
applicable rules or regulations, the Board of Directors 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 of the
committee present at any meeting and not disqualified from voting, whether
or
not such member or members constitute a quorum, may unanimously appoint another
member of the Board of Directors to 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 of Directors, shall have and may exercise all the
powers
and authority of the Board of Directors in the management of the business
and
affairs of the Corporation, and may authorize the seal of the Corporation
to be
affixed to all papers that may require it; but no such committee shall have
power or authority to amend the Certificate of Incorporation, adopt an agreement
of merger or consolidation, recommend to the stockholders the sale, lease
or
exchange of all or substantially all of the Corporation’s property and assets,
recommend to the stockholders a dissolution of the Corporation or a revocation
of a dissolution, elect or remove officers or Directors or amend these By-Laws
of the Corporation; and, unless the resolution or the Certificate of
Incorporation expressly so provides, no such committee shall have the power
or
authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined
from
time to time by resolution adopted by the Board of Directors.
Section
2. TELEPHONE
MEETINGS.
Members
of a committee of the Board of Directors may participate in a meeting by
means
of a conference telephone or similar communications equipment if all persons
participating in the meeting can hear each other at the same time. Participation
in a meeting by these means shall constitute presence in person at the
meeting.
Section
3. INFORMAL
ACTION BY COMMITTEES.
Any
action required or permitted to be taken at any meeting of a committee of
the
Board of Directors may be taken without a meeting, if a consent in writing
to
such action is signed by each member of the committee and such written consent
is filed with the minutes of proceedings of such committee.
ARTICLE
V
OFFICERS
Section
1. GENERAL
PROVISIONS.
The
officers of the Corporation shall include a chief executive officer and/or
a
president, a secretary, and a chief financial officer and/or treasurer and
may
include a chairman of the board (or one or more co-chairmen of the board),
a
vice chairman of the board, one or more vice presidents, a chief operating
officer, one or more assistant secretaries and one or more assistant treasurers.
In addition, the Board of Directors may from time to time appoint such other
officers with such powers and duties as they shall deem necessary or desirable.
The officers of the Corporation shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held after each
annual
meeting of stockholders, except that the chief executive officer may appoint
one
or more vice presidents, assistant secretaries and assistant treasurers.
If the
election of officers shall not be held at such meeting, such election shall
be
held as soon thereafter as may be convenient. Each officer shall hold office
until his successor is elected and qualifies or until his death, resignation
or
removal in the manner hereinafter provided. Any two or more offices except
president and vice president may be held by the same person. In its discretion,
the Board of Directors may leave unfilled any office except that of president,
chief financial officer/treasurer and secretary. Election of an officer or
agent
shall not of itself create contract rights between the Corporation and such
officer or agent.
Section
2. REMOVAL
AND RESIGNATION.
Any
officer or agent of the Corporation may be removed by the Board of Directors
if
in its judgment the best interests of the Corporation would be served thereby,
but such removal shall be without prejudice to the contract rights, if any,
of
the person so removed. Any officer of the Corporation may resign at any time
by
giving written notice of his resignation to the Board of Directors, the chairman
of the board (or any co-chairman of the board if more than one), the president
or the secretary. Any resignation shall take effect at any time subsequent
to
the time specified therein or, if the time when it shall become effective
is not
specified therein, immediately upon its receipt. The acceptance of a resignation
shall not be necessary to make it effective unless otherwise stated in the
resignation. Such resignation shall be without prejudice to the contract
rights,
if any, of the Corporation.
Section
3. VACANCIES.
A
vacancy in any office may be filled by the Board of Directors for the balance
of
the term.
Section
4. CHIEF
EXECUTIVE OFFICER.
The
Board of Directors may designate a chief executive officer. In the absence
of
such designation, the chairman of the board (or, if more than one, the
co-chairmen of the board in the order designated at the time of their election
or, in the absence of any designation, then in the order of their election)
shall be the chief executive officer of the Corporation. The chief executive
officer shall have general responsibility for implementation of the policies
of
the Corporation, as determined by the Board of Directors, and for the management
of the business and affairs of the Corporation.
Section
5. CHIEF
OPERATING OFFICER.
The
Board of Directors may designate a chief operating officer. The chief operating
officer shall have the responsibilities and duties as set forth by the Board
of
Directors or the chief executive officer.
Section
6. CHIEF
FINANCIAL OFFICER.
The
Board of Directors may designate a chief financial officer. The chief financial
officer shall have the responsibilities and duties as set forth by the Board
of
Directors or the chief executive officer.
Section
7. CHAIRMAN
OF THE BOARD.
The
Board of Directors shall designate a chairman of the board (or one or more
co-chairmen of the board). The chairman of the board shall preside over the
meetings of the Board of Directors and of the stockholders at which he shall
be
present. If there be more than one, the co-chairmen designated by the Board
of
Directors will perform such duties. The chairman of the board shall perform
such
other duties as may be assigned to him or them by the Board of
Directors.
Section
8. PRESIDENT.
The
president or chief executive officer, as the case may be, shall in general
supervise and control all of the business and affairs of the Corporation.
In the
absence of a designation of a chief operating officer by the Board of Directors,
the president shall be the chief operating officer. He may execute any deed,
mortgage, bond, contract or other instrument, except in cases where the
execution thereof shall be expressly delegated by the Board of Directors
or by
these By-Laws to some other officer or agent of the Corporation or shall
be
required by law to be otherwise executed; and in general shall perform all
duties incident to the office of president and such other duties as may be
prescribed by the Board of Directors from time to time.
Section
9. VICE
PRESIDENTS.
In the
absence of the president or in the event of a vacancy in such office, the
vice
president (or in the event there be more than one vice president, the vice
presidents in the order designated at the time of their election or, in the
absence of any designation, then in the order of their election) shall perform
the duties of the president and when so acting shall have all the powers
of and
be subject to all the restrictions upon the president; and shall perform
such
other duties as from time to time may be assigned to him by the president
or by
the Board of Directors. The Board of Directors may designate one or more
vice
presidents as executive vice president or as vice president for particular
areas
of responsibility.
Section
10. SECRETARY.
The
secretary shall (a) keep the minutes of the proceedings of the stockholders,
the
Board of Directors and committees of the Board of Directors in one or more
books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these By-Laws or as required by law; (c) be custodian
of
the corporate records and of the seal of the Corporation; (d) keep a register
of
the post office address of each stockholder which shall be furnished to the
secretary by such stockholder; (e) have general charge of the share transfer
books of the Corporation; and (f) in general perform such other duties as
from
time to time may be assigned to him by the chief executive officer, the
president or by the Board of Directors.
Section
11. TREASURER.
The
treasurer shall have the custody of the funds and securities of the Corporation
and shall keep full and accurate accounts of receipts and disbursements in
books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories
as
may be designated by the Board of Directors. In the absence of a designation
of
a chief financial officer by the Board of Directors, the treasurer shall
be the
chief financial officer of the Corporation.
The
treasurer shall disburse the funds of the Corporation as may be ordered by
the
Board of Directors, taking proper vouchers for such disbursements, and shall
render to the president and Board of Directors, at the regular meetings of
the
Board of Directors or whenever it may so require, an account of all his
transactions as treasurer and of the financial condition of the
Corporation.
If
required by the Board of Directors, the treasurer shall give the Corporation
a
bond in such sum and with such surety or sureties as shall be satisfactory
to
the Board of Directors for the faithful performance of the duties of his
office
and for the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, moneys
and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
Section
12. ASSISTANT
SECRETARIES AND ASSISTANT TREASURERS.
The
assistant secretaries and assistant treasurers, in general, shall perform
such
duties as shall be assigned to them by the secretary or treasurer, respectively,
or by the president or the Board of Directors. The assistant treasurers shall,
if required by the Board of Directors, give bonds for the faithful performance
of their duties in such sums and with such surety or sureties as shall be
satisfactory to the Board of Directors.
Section
13. SALARIES.
The
salaries of the officers shall be fixed from time to time by the Board of
Directors and no officer shall be prevented from receiving such salary by
reason
of the fact that he is also a director.
ARTICLE
VI
CONTRACTS,
LOANS, CHECKS AND DEPOSITS
Section
1. CONTRACTS.
The
Board of Directors may authorize any officer or agent to enter into any contract
or to execute and deliver any instrument in the name of and on behalf of
the
Corporation and such authority may be general or confined to specific instances.
Any agreement, deed, mortgage, lease or other document executed by one or
more
of the directors or by an authorized person shall be valid and binding upon
the
Board of Directors and upon the Corporation when authorized or ratified by
action of the Board of Directors.
Section
2. CHECKS
AND DRAFTS.
All
checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the Corporation shall be
signed
by such officer or officers, agent or agents of the Corporation in such manner
as shall from time to time be determined by the Board of Directors.
Section
3. DEPOSITS.
All
funds of the Corporation not otherwise employed shall be deposited from time
to
time to the credit of the Corporation in such banks, trust companies or other
depositories as the Board of Directors may designate.
ARTICLE
VII
STOCK
Section
1. CERTIFICATES;
UNCERTIFICATED SHARES.
The
shares of stock of the Corporation shall be represented by certificates,
or by
uncertificated shares that may be evidenced by a book-entry system maintained
by
the registrar of such stock, or a combination of both, as permitted by, and
in
accordance with, the Delaware General Corporation Law. If shares are represented
by certificates (if any), such certificates shall be in the form approved
by the
Board of Directors. The certificates representing shares of stock of each
class
shall be signed by, or in the name of, the Corporation by the chief executive
officer, the president or a vice president and countersigned by the secretary
or
an assistant secretary or the treasurer or an assistant treasurer and may
be
sealed with the seal, if any, of the Corporation. The signatures may be either
manual or facsimile. A certificate is valid and may be issued whether or
not an
officer who signed it is still an officer when it is issued.
Section
2. TRANSFERS.
Transfers of stock shall be made only on the stock transfer books of the
Corporation and (i) with respect to stock represented by a certificate, upon
surrender of the certificate previously issued therefor which is outstanding
and
not canceled, duly endorsed or accompanied by appropriate evidence of
succession, assignment or authority to transfer, and (ii) with respect to
uncertificated shares, upon receipt of proper transfer instructions from
the
record holder thereof. Subject to the provisions of the Corporation’s
Certificate of Incorporation and these By-Laws, the Board of Directors may
prescribe such additional rules and regulations as it may deem appropriate
relating to the issue, transfer and registration of shares of the Corporation.
Section
3. REPLACEMENT
CERTIFICATE.
The
Board of Directors may direct that a new certificate or uncertificated shares
be
issued in place of any certificate 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 to be lost, stolen or destroyed.
When authorizing such issue of a new certificate or uncertificated shares,
the
Board of Directors may, in its discretion and as a condition precedent to
the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or such owner’s legal representative, to advertise the same in such
manner as the Corporation shall require and/or give the Corporation a bond
in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation or its transfer agent or registrar with respect to
the
certificate alleged to have been lost, stolen or destroyed.
Section
4. CLOSING
OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
The
Board of Directors may set, in advance, a record date for the purpose of
determining stockholders entitled to notice of or to vote at any meeting
of
stockholders or determining stockholders entitled to receive payment of any
dividend or the allotment of any other rights, or in order to make a
determination of stockholders for any other proper purpose. Such date, in
any
case, shall not be prior to the close of business on the day the record date
is
fixed and shall be not more than 60 days and, in the case of a meeting of
stockholders, not less than ten days, before the date on which the meeting
or
particular action requiring such determination of stockholders is to be held
or
taken.
In
lieu
of fixing a record date, the Board of Directors may provide that the stock
transfer books shall be closed for a stated period but not longer than 20
days.
If the stock transfer books are closed for the purpose of determining
stockholders entitled to notice of or to vote at a meeting of stockholders,
such
books shall be closed for at least ten days before the date of such
meeting.
If
no
record date is fixed and the stock transfer books are not closed for the
determination of stockholders, (a) the record date for the determination
of
stockholders entitled to notice of or to vote at a meeting of stockholders
shall
be at the close of business on the day on which the notice of meeting is
mailed
or the 30th day before the meeting, whichever is the closer date to the meeting;
and (b) the record date for the determination of stockholders entitled to
receive payment of a dividend or an allotment of any other rights shall be
the
close of business on the day on which the resolution of the directors, declaring
the dividend or allotment of rights, is adopted.
When
a
determination of stockholders entitled to vote at any meeting of stockholders
has been made as provided in this section, such determination shall apply
to any
adjournment thereof, except where the determination has been made through
the
closing of the transfer books and the stated period of closing has
expired.
Section
5. STOCK
LEDGER.
The
Corporation shall maintain at its principal office or at the office of its
counsel, accountants or transfer agent, an original or duplicate share ledger
containing the name and address of each stockholder and the number of shares
of
each class held by such stockholder.
Section
6. FRACTIONAL
STOCK; ISSUANCE OF UNITS.
The
Board of Directors may issue fractional stock or provide for the issuance
of
scrip, all on such terms and under such conditions as they may determine.
Notwithstanding any other provision of the Certificate of Incorporation or
these
By-Laws, the Board of Directors may issue units consisting of different
securities of the Corporation. Any security issued in a unit shall have the
same
characteristics as any identical securities issued by the Corporation, except
that the Board of Directors may provide that for a specified period securities
of the Corporation issued in such unit may be transferred on the books of
the
Corporation only in such unit.
ARTICLE
VIII
ACCOUNTING
YEAR
The
Board
of Directors shall have the power, from time to time, to fix the fiscal year
of
the Corporation by a duly adopted resolution.
ARTICLE
IX
DISTRIBUTIONS
Section
1. AUTHORIZATION.
Dividends and other distributions upon the stock of the Corporation may be
authorized and declared by the Board of Directors, subject to the provisions
of
law and the Certificate of Incorporation of the Corporation. Dividends and
other
distributions may be paid in cash, property or stock of the Corporation,
subject
to the provisions of law and the Certificate of Incorporation.
Section
2. CONTINGENCIES.
Before
payment of any dividends or other distributions, there may be set aside out
of
any assets of the Corporation available for dividends or other distributions
such sum or sums as the Board of Directors may from time to time, in its
absolute discretion, think proper as a reserve fund for contingencies, for
equalizing dividends or other distributions, for repairing or maintaining
any
property of the Corporation or for such other purpose as the Board of Directors
shall determine to be in the best interest of the Corporation, and the Board
of
Directors may modify or abolish any such reserve in the manner in which it
was
created.
ARTICLE
X
SEAL
Section
1. SEAL.
The
corporate seal shall have inscribed thereon the name of the Corporation,
the
year of its incorporation and the words “Corporate Seal” and “Delaware.” The
seal or any facsimile thereof may be, but need not be, unless required by
law,
impressed or affixed to any instrument executed by an officer of the
Corporation. The Board of Directors may authorize one or more duplicate seals
and provide for the custody thereof.
Section
2. AFFIXING
SEAL.
Whenever the Corporation is required to affix its seal to a document, it
shall
be sufficient to meet the requirements of any law, rule or regulation relating
to a seal to place the word “(SEAL)” adjacent to the signature of the person
authorized to execute the document on behalf of the Corporation.
ARTICLE
XI
INDEMNIFICATION
AND ADVANCES FOR EXPENSES
SECTION
1. POWER
TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN THE
RIGHT OF THE CORPORATION.
Subject
to Section 3 of this Article XI, 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 such person is or was
a
director or officer of the Corporation, or is or was a director or officer
of
the Corporation 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 such person in connection with such action, suit or proceeding if such
person
acted in good faith and in a manner such person 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 no reasonable cause to believe such person’s
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a pleas 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 such person 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
such
person’s conduct was lawful.
SECTION
2. POWER
TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION.
Subject
to Section 3 of this Article XI, 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
such
person is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation 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 such person in connection with
the
defense or settlement of such action or suit if such person acted in good
faith
and in a manner such person reasonably believed to be in or not opposed to
the
best interests of the Corporation; 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 or such other court shall deem proper.
SECTION
3. AUTHORIZATION
OF INDEMNIFICATION.
Any
indemnification under this Article XI (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the present or former director or officer
is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Section 1 or Section 2 of this
Article XI, as the case may be. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (i) by a majority vote of the directors who are not parties
to such action, suit or proceeding, even though less than a quorum, or
(ii) by a committee of such directors designated by a majority vote of such
directors, even though less than a quorum, or (iii) if there are no such
directors, or if such directors so direct, by independent legal counsel in
a
written opinion or (iv) by the stockholders. Such determination shall be
made, with respect to former directors and officers, by any person or persons
having the authority to act on the matter on behalf of the Corporation. To
the
extent, however, that a present or former director or officer of the Corporation
has been successful on the merits or otherwise in defense of any action,
suit or
proceeding described above, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection therewith,
without
the necessity of authorization in the specific case.
SECTION
4. GOOD
FAITH DEFINED.
For
purposes of any determination under Section 3 of this Article XI, a
person shall be deemed to have acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal action or proceeding, to have
had
no reasonable cause to believe such person’s conduct was unlawful, if such
person’s action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to such person by the officers
of the Corporation or another enterprise in the course of their duties, or
on
the advice of legal counsel for the Corporation or another enterprise or
on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser
or
other expert selected with reasonable care by the Corporation or another
enterprise. The provisions of this Section 4 shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may
be
deemed to have met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article XI, as the case may
be.
SECTION
5. INDEMNIFICATION
BY A COURT.
Notwithstanding any contrary determination in the specific case under
Section 3 of this Article XI, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to the Court
of
Chancery of the State of Delaware or any other court of competent jurisdiction
in the State of Delaware for indemnification to the extent otherwise permissible
under Section 1 or Section 2 of this Article XI. The basis of
such indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct set forth
in
Section 1 or Section 2 of this Article XI, as the case may be.
Neither a contrary determination in the specific case under Section 3 of
this Article XI nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the director or
officer
seeking indemnification has not met any applicable standard of conduct. Notice
of any application for indemnification pursuant to this Section 5 shall be
given to the Corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking indemnification
shall also be entitled to be paid the expense of prosecuting such
application.
SECTION
6. EXPENSES
PAYABLE IN ADVANCE.
Expenses (including attorneys’ fees) incurred by a present or former director or
officer in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall 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 such director or officer to repay such amount
if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article XI. Such
expenses (including attorneys’ fees) incurred by other employees and agents may
be so paid upon such terms and conditions, if any, as the Corporation deems
appropriate.
SECTION
7. NONEXCLUSIVELY
OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this Article XI shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled
under
the Certificate of Incorporation, these By-Laws, 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, it being the policy of the Corporation that indemnification of the
persons specified in Section 1 and Section 2 of this Article XI
shall be made to the fullest extent permitted by law. The provisions of this
Article XI shall not be deemed to preclude the indemnification of any
person who is not specified in Section 1 or Section 2 of this
Article XI but whom the Corporation has the power or obligation to
indemnify under the provisions of the Delaware General Corporation Law, or
otherwise.
SECTION
8. INSURANCE.
The
Corporation may purchase and maintain insurance on behalf of any person who
is
or was a director of officer of the Corporation or is or was a director or
officer of the Corporation 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
such
person and incurred by such person in any such capacity, or arising out of
such
person’s status as such, whether or not the Corporation would have the power or
the obligation to indemnify such person against such liability under the
provisions of this Article XI.
SECTION
9. CERTAIN
DEFINITIONS.
For
purposes of this Article XI, references to “the Corporation” shall include,
in addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to
indemnify its directors or officers, so that any person who is or was a director
or officer of such constituent corporation, or is or was a director or officer
of such constituent corporation serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the
same
position under the provisions of this Article XI with respect to the
resulting or surviving corporation as such person would have with respect
to
such constituent corporation if its separate existence had continued. The
term
“another enterprise” as used in this Article XI shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan
or
other enterprise of which such person is or was serving at the request of
the
Corporation as a director, officer, employee or agent. For purposes of this
Article XI, references to “fines” shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and references to “serving
at the request of the Corporation” shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in
good
faith and in a manner such person reasonably believed to be in the interest
of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner “not opposed to the best interests of the Corporation”
as referred to in this Article XI.
SECTION
10. SURVIVAL
OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this Article XI shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director or officer
and
shall inure to the benefit of the heirs, executors and administrators of
such a
person.
SECTION
11. LIMITATION
ON INDEMNIFICATION.
Notwithstanding anything contained in this Article XI to the contrary,
except for proceedings to enforce rights to indemnification (which shall
be
governed by Section 5 of this Article XI), the Corporation shall not
be obligated to indemnify any director or officer (or his or her heirs,
executors or personal or legal representatives) or advance expenses in
connection with a proceeding (or part thereof) initiated by such person unless
such proceeding (or party thereof) was authorized or consented to by the
Board
of Directors of the Corporation.
SECTION
12. INDEMNIFICATION
OF EMPLOYEES AND AGENTS.
The
Corporation may, to the extent authorized from time to time by the Board
of
Directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the Corporation similar to those conferred in
this
Article XI to directors and officers of the Corporation.
ARTICLE
XII
WAIVER
OF NOTICE
Whenever
any notice is required to be given pursuant to the Certificate of Incorporation
of the Corporation or these By-Laws or pursuant to applicable law, waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent
to
the giving of such notice. Neither the business to be transacted at nor the
purpose of any meeting need be set forth in the waiver of notice, unless
specifically required by statute. The attendance of any person at any meeting,
in person or by proxy, shall constitute a waiver of notice of such meeting,
except where such person attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
ARTICLE
XIII
AMENDMENT
OF BY-LAWS
These
By-Laws may be altered, amended or repealed or new By-Laws may be adopted
by the
stockholders or by the Board of Directors, to the extent that such power
is
conferred upon the Board of Directors by the Certificate of Incorporation,
at
any regular meeting of the stockholders or of the Board of Directors or at
any
special meeting of the stockholders or of the Board of Directors if notice
of
such proposed alteration, amendment, repeal or adoption of new By-Laws shall
be
contained in the notice of such special meeting.