Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 99 465K
2: EX-3.2 Articles of Incorporation/Organization or By-Laws 7 23K
3: EX-3.3 Articles of Incorporation/Organization or By-Laws 13 69K
4: EX-3.4 Articles of Incorporation/Organization or By-Laws 21 93K
5: EX-10.1 Material Contract 15 61K
12: EX-10.10 Material Contract 109 334K
6: EX-10.2 Material Contract 13 54K
7: EX-10.3 Material Contract 20 95K
8: EX-10.4 Material Contract 8 39K
9: EX-10.5 Material Contract 12 50K
10: EX-10.6 Material Contract 11 37K
11: EX-10.9 Material Contract 13 57K
13: EX-23.2 Consent of Experts or Counsel 1 7K
14: EX-23.3 Consent of Experts or Counsel 1 7K
15: EX-27.1 Financial Data Schedule (Pre-XBRL) 2 8K
EX-3.3 — Articles of Incorporation/Organization or By-Laws
Exhibit Table of Contents
EXHIBIT 3.3
BYLAWS OF
ADVANCED MEDICINE, INC.
A DELAWARE CORPORATION
Date: November 19, 1996
[Enlarge/Download Table]
TABLE OF CONTENTS
PAGE
----
ARTICLE I. MEETINGS OF STOCKHOLDERS..............................................................................1
Section 1. Place of Meetings....................................................................................1
Section 2. Annual Meeting.......................................................................................1
Section 3. Special Meetings.....................................................................................1
Section 4. Notice of Meetings...................................................................................1
Section 5. Voting List..........................................................................................1
Section 6. Quorum...............................................................................................2
Section 7. Adjournments.........................................................................................2
Section 8. Action at Meetings...................................................................................2
Section 9. Voting and Proxies...................................................................................2
Section 10. Action Without Meeting..............................................................................3
ARTICLE II. DIRECTORS............................................................................................3
Section 1. Number, Election, Tenure and Qualification...........................................................3
Section 2. Enlargement..........................................................................................3
Section 3. Vacancies............................................................................................3
Section 4. Resignation and Removal..............................................................................4
Section 5. General Powers.......................................................................................4
Section 6. Chairman of the Board................................................................................4
Section 7. Place of Meetings....................................................................................4
Section 8. Regular Meetings.....................................................................................4
Section 9. Special Meetings.....................................................................................4
Section 10. Quorum, Action at Meeting, Adjournments.............................................................4
Section 11. Action by Consent...................................................................................5
Section 12. Telephonic Meetings.................................................................................5
Section 13. Committees..........................................................................................5
Section 14. Compensation........................................................................................6
ARTICLE III. OFFICERS............................................................................................6
Section 1. Enumeration..........................................................................................6
Section 2. Election.............................................................................................6
Section 3. Tenure...............................................................................................6
Section 4. President............................................................................................6
Section 5. Vice-Presidents......................................................................................7
Section 6. Secretary............................................................................................7
Section 7. Assistant Secretaries................................................................................7
Section 8. Treasurer............................................................................................7
Section 9. Assistant Treasurers.................................................................................8
Section 10. Bond................................................................................................8
ARTICLE IV. NOTICES..............................................................................................8
Section 1. Delivery.............................................................................................8
i
Section 2. Waiver of Notice.....................................................................................8
ARTICLE V. INDEMNIFICATION.......................................................................................9
Section 1. Actions other than by or in the Right of the Corporation.............................................9
Section 2. Actions by or in the Right of the Corporation........................................................9
Section 3. Success on the Merits................................................................................9
Section 4. Specific Authorization..............................................................................10
Section 5. Advance Payment.....................................................................................10
Section 6. Nonexclusivity......................................................................................10
Section 7. Insurance...........................................................................................10
Section 8. Continuation of Indemnification and Advancement of Expenses.........................................10
Section 9. Severability........................................................................................10
Section 10. Intent of Article..................................................................................11
ARTICLE VI. CAPITAL STOCK.......................................................................................11
Section 1. Certificates of Stock...............................................................................11
Section 2. Lost Certificates...................................................................................11
Section 3. Transfer of Stock...................................................................................11
Section 4. Record Date.........................................................................................12
Section 5. Registered Stockholders.............................................................................12
ARTICLE VII. CERTAIN TRANSACTIONS...............................................................................12
Section 1. Transactions with Interested Parties................................................................12
Section 2. Quorum..............................................................................................13
ARTICLE VIII. GENERAL PROVISIONS................................................................................13
Section 1. Dividends...........................................................................................13
Section 2. Reserves............................................................................................13
Section 3. Checks..............................................................................................13
Section 4. Fiscal Year.........................................................................................13
Section 5. Seal................................................................................................13
ARTICLE IX. AMENDMENTS..........................................................................................14
ii
BYLAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of the stockholders shall
be held at such place within or without the State of Delaware as may be fixed
from time to time by the board of directors or the chief executive officer,
not so designated, at the registered of office of the corporation.
Section 2. ANNUAL MEETING. Annual meetings of stockholders shall be
held on the SECOND TUESDAY OF JUNE in each year if not a legal holiday, and if
a legal holiday, then on the next secular day following, at 10:00 a.m., or at
such other date and time as shall be designated from time to time by the board
of directors or the chief executive officer, at which meeting the stockholders
shall elect by a plurality vote a board of directors and shall transact such
other business as may properly be brought before the meeting. If no annual
meeting is held in accordance with the foregoing provisions, the board of
directors shall cause the meeting to be held as soon thereafter as convenient,
which meeting shall be designated a special meeting in lieu of annual meeting.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders,
for any purpose or purposes, may, unless otherwise prescribed by statute or by
the certificate of incorporation, be called by the board of directors or the
chief executive officer and shall be called by the chief executive officer or
secretary at the request in writing of a majority of the board of directors,
or at the request in writing of stockholders owning a MAJORITY in amount of
the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting. Business transacted at any special meeting shall be limited
to matters relating to the purpose or purposes stated in the notice of meeting.
Section 4. NOTICE OF MEETINGS. Except as otherwise provided by law,
written notice of each meeting of stockholders, annual or special, 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, shall be given not less
than ten or more than sixty days before the date of the meeting, to each
stockholder entitled to vote at such meeting.
Section 5. VOTING LIST. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city or town where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be inspected
by any stockholder who is present.
Section 6. QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by statute, the
certificate of incorporation or these bylaws. Where a separate vote by a class
or classes is required, a majority of the outstanding shares of such class or
classes, present in person or represented by proxy, shall constitute a quorum
entitled to take action with respect to that vote on that matter. If no quorum
shall be present or represented at any meeting of stockholders, such meeting
may be adjourned in accordance with Section 7 hereof, until a quorum shall be
present or represented.
Section 7. ADJOURNMENTS. Any meeting of stockholders may be
adjourned from time to time to any other time and to any other place at which
a meeting of stockholders may be held under these bylaws, which time and place
shall be announced at the meeting, by a majority of the stockholders present
in person or represented by proxy at the meeting and entitled to vote,
(whether or not a quorum is present), or, if no stockholder is present or
represented by proxy, by any officer entitled to preside at or to act as
secretary of such meeting, without notice other than announcement at the
meeting. At such adjourned meeting, any business may be transacted which might
have been transacted at the original meeting. If any meeting of stockholders
at which a quorum is present or represented is adjourned, then, at such
adjourned meeting, any business may be transacted that might have been
transacted at the original meeting, whether or not a quorum shall be present
or represented at such adjourned meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 8. ACTION AT MEETINGS. When a quorum is present at any
meeting, the affirmative vote of the holders of a majority of the stock
present in person or represented by proxy, entitled to vote and voting on the
matter (or where a separate vote by a class or classes is required, the
affirmative vote of the majority of shares of such class or classes present in
person or represented by proxy at the meeting) shall decide any matter (other
than the election of directors) brought before such meeting, unless the matter
is one upon which by express provision of law, the certificate of
incorporation or these bylaws, a different vote is required, in which case
such express provision shall govern and control the decision of such matter.
The stock of holders who abstain from voting on any matter shall be deemed not
to have been voted on such matter. Directors shall be elected by a plurality
of the votes of the shares present in person or represented by proxy at the
meeting, entitled to vote and voting on the election of directors.
Section 9. VOTING AND PROXIES. Unless otherwise provided in the
certificate of incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote for each share of capital stock having
voting power held of record by such stockholder. Each 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, but no such proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a longer
period.
2
Section 10. ACTION WITHOUT 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 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 II
DIRECTORS
Section 1. NUMBER, ELECTION, TENURE AND QUALIFICATION. The number of
directors which shall constitute the whole board shall be not less than one.
Within such limit, the number of directors shall be determined by resolution
of the board of directors or by the stockholders at the annual meeting or at
any special meeting of stockholder. The directors shall be elected at the
annual meeting or at any special meeting of the stockholders, except as
provided in Section 3 of this Article, and each director elected shall hold
office until his successor is elected and qualified, unless sooner displaced.
Directors need not be stockholders.
Section 2. ENLARGEMENT. The number of the board of directors may be
increased at any time by vote of a majority of the directors then in office.
Section 3. VACANCIES. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen shall
hold office until the next annual election and until their successors are duly
elected and shall qualify, unless sooner displaced. If there are no directors
in office, then an election of directors may be held in the manner provided by
statute. In the event of a vacancy in the board of directors, the remaining
directors, except as otherwise provided by law or these bylaws, may exercise
the powers of the full board until the vacancy is filled.
Section 4. RESIGNATION AND REMOVAL. Any director may resign at any
time upon written notice to the corporation at its principal place of business
or to the chief executive of officer or secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other
time or upon the happening of some other event. Any director or the entire
board of directors may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors,
unless otherwise specified by law or the certificate of incorporation.
3
Section 5. GENERAL POWERS. The business and affairs of the
corporation shall be managed by its board of directors, which may exercise all
powers of the corporation and do all such lawful acts and things as are not by
statute or by the certificate of incorporation or by these bylaws directed or
required to be exercised or done by the stockholders.
Section 6. CHAIRMAN OF THE BOARD. If the board of directors appoints
a chairman of the board, he shall, when present, preside at all meetings of
the stockholders and the board of directors. He shall perform such duties and
possess such powers as are customarily vested in the officer of the chairman
of the board or as may be vested in him by the board of directors.
Section 7. PLACE OF MEETINGS. The board of directors may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 8. REGULAR MEETINGS. Regular meetings of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board; provided that any director who
is absent when such a determination is made shall be given prompt notice of
such determination. A regular meeting of the board of directors may be held
without notice immediately after and at the same place as the annual meeting
of stockholders.
Section 9. SPECIAL MEETINGS. Special meetings of the board may be
called by the chief executive officer, secretary, or on the written request of
two or more directors, or by one director in the event that there is only one
director in office. Two days' notice to each director, either personally or by
telegram, cable, telecopy, commercial delivery service, telex or similar means
sent to his business or home address, or three days' notice by written notice
deposited in the mail, shall be given to each director by the secretary or by
the officer or one of the directors calling the meeting. A notice or waiver of
notice of a meeting of the board of directors need not specify the purposes of
the meeting.
Section 10. QUORUM, ACTION AT MEETING, ADJOURNMENTS. At all meetings
of the board a majority of directors then in office, but in no event less than
one third of the entire board, shall constitute a quorum for the transaction
of business and the act of a majority of the directors present at any meeting
at which there is a quorum shall be the act of the board of directors, except
as may be otherwise specifically provided by law or by the certificate of
incorporation. For purposes of this section, the term "entire board" shall
mean the number of directors last fixed by the stockholders or directors, as
the case may be, in accordance with law and these bylaws; provided, however,
that if less than all the number so fixed of directors were elected, the
"entire board" shall mean the greatest number of directors so elected to hold
office at any one time pursuant to such authorization. If a quorum shall not
be present at any meeting of the board of directors, a majority of the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 11. ACTION BY CONSENT. Unless otherwise restricted by the
certificate of incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee
thereof may be taken without a meeting, if all
4
members of the board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the board or committee.
Section 12. TELEPHONIC MEETINGS. Unless otherwise restricted by the
certificate of incorporation or these bylaws, members of the board of
directors or of any committee thereof may participate in a meeting of the
board of directors or of any 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 such
participation in a meeting shall constitute presence in person at the meeting.
Section 13. COMMITTEES. The board of directors may, by resolution
passed by a majority of the whole board, designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. 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 which may require it; but no such committee shall
have the power or authority in reference to amending the certificate of
incorporation, adopting an agreement of merger or consolidation, recommending
to the stockholders the sale, lease or exchange of all or substantially all of
the corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending
the bylaws of the corporation; and, unless the resolution designating such
committee or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. 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. Each committee shall keep regular minutes of its
meetings and make such reports to the board of directors as the board of
directors may request. Except as the board of directors may otherwise
determine, any committee may make rules for the conduct of its business, but
unless otherwise provided by the directors or in such rule, its business shall
be conducted as nearly as possible in the same manner as is provided in these
bylaws for the conduct of its business by the board of directors.
Section 14. COMPENSATION. Unless otherwise restricted by the
certificate of incorporation or these bylaws, the board of directors shall
have the authority to fix from time to time the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the board of directors and the performance of their responsibilities as
directors may be paid a fixed sum for attendance at each meeting of the board
of directors and/or a stated salary as director. No such payment shall
preclude any director from serving the corporation or its parent or subsidiary
corporations in any other capacity and receiving compensation therefor. The
board of directors may also allow compensation for members of special or
standing committees for service on such committees.
5
ARTICLE III
OFFICERS
Section 1. ENUMERATION. The officers of the corporation shall be
chosen by the board of directors and shall be a president, a secretary and a
treasurer and such other officers with such titles, terms of office and duties
as the board of directors may from time to time determine, including a
chairman of the board, one or more vice-presidents, and one or more assistant
secretaries and assistant treasurers. If authorized by resolution of the board
of directors, the chief executive officer may be empowered to appoint from
time to time assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of
incorporation or these bylaws otherwise provide.
Section 2. ELECTION. The board of directors at its first meeting
after each annual meeting of stockholders shall choose a president, a
secretary and a treasurer. Other officers may be appointed by the board of
directors at such meeting, at any other meeting, or by written consent.
Section 3. TENURE. The officers of the corporation shall hold office
until their successors are chosen and qualify, unless a different term is
specified in the vote choosing or appointing him, or until his earlier death,
resignation or removal. Any officer elected or appointed by the board of
directors or by the chief executive officer may be removed at any time, with
or without cause, by the affirmative vote of a majority of the board of
directors or a committee duly authorized to do so, except that any officer
appointed by the chief executive officer may also be removed at any time, with
or without cause, by the chief executive officer. Any vacancy occurring in any
office of the corporation may be filled by the board of directors, at its
discretion. Any officer may resign by delivering his written resignation to
the corporation at its principal place of business or to the chief executive
officer or the secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon the
happening of some other event.
Section 4. PRESIDENT. The president shall be the chief operating
officer of the corporation. He shall also be the chief executive officer
unless the board of directors otherwise provides. If no chief executive
officer shall have been appointed by the board of directors, all references
herein to the "chief executive officer" shall be to the president. The
president shall, unless the board of directors provides otherwise in a
specific instance or generally, preside at all meetings of the stockholders
and the board of directors, have general and active management of the business
of the corporation and see that all orders and resolutions of the board of
directors are carried into effect. The president shall execute bonds,
mortgages, and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent
of the corporation.
Section 5. VICE-PRESIDENTS. In the absence of the president or in
the event of his inability or refusal to act, the vice-president, or if there
be more than one vice-president, the vice presidents in the order designated
by the board of directors or the chief executive officer (or in the absence of
any designation, then in the order determined by their tenure in office) shall
6
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. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors or the chief executive officer may from time to time
prescribe.
Section 6. SECRETARY. The secretary shall have such powers and
perform such duties as are incident to the office of secretary. He shall
maintain a stock ledger and prepare lists of stockholders and their addresses
as required and shall be the custodian of corporate records. The secretary
shall attend all meetings of the board of directors and all meetings of the
stockholders and record all the proceedings of the meetings of the corporation
and of the board of directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He shall give,
or cause to be given, notice of all meetings of the stockholders and special
meetings of the board of directors, and shall perform such other duties as may
be from time to time prescribed by the board of directors or chief executive
officer, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by his signature or by the signature of such
assistant secretary. The board of directors may give general authority to any
other officer to affix the seal of the corporation and to attest the affixing
by his signature.
Section 7. ASSISTANT SECRETARIES. The assistant secretary, or if
there be more than one, the assistant secretaries in the order determined by
the board of directors, the chief executive officer or the secretary (or if
there be no such determination, then in the order determined by their tenure
in office), shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as
the board of directors, the chief executive officer or the secretary may from
time to time prescribe. In the absence of the secretary or any assistant
secretary at any meeting of stockholders or directors, the person presiding at
the meeting shall designate a temporary or acting secretary to keep a record
of the meeting.
Section 8. TREASURER. The treasurer shall perform such duties and
shall have such powers as may be assigned to him by the board of directors or
the chief executive officer. In addition, the treasurer shall perform such
duties and have such powers as are incident to the office of treasurer. The
treasurer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the corporation in such depositories
as may be designated by the board of directors. He 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 chief executive
officer and the board of directors, when the chief executive officer or board
of directors so requires, an account of all his transactions as treasurer and
of the financial condition of the corporation.
Section 9. ASSISTANT TREASURERS. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by
the board of directors, the chief executive officer or the treasurer (or if
there be no such determination, then in the order determined by their tenure
in office), shall, in the absence of the treasurer or in the event of his
7
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as
the board of directors, the chief executive officer or the treasurer may from
time to time prescribe.
Section 10. BOND. If required by the board of directors, any officer
shall give the corporation a bond in such sum and with such surety or sureties
and upon such terms and conditions as shall be satisfactory to the board of
directors, including without limitation a bond for the faithful performance of
the duties of his office and for the restoration to the corporation of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control and belonging to the corporation.
ARTICLE IV
NOTICES
Section 1. DELIVERY. Whenever, under the provisions of law, or of
the certificate of incorporation or these bylaws, written notice is required
to be given to any director or stockholder, such notice may be given by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in
the United States mail. Unless written notice by mail is required by law,
written notice may also be given by telegram, cable, telecopy, commercial
delivery service, telex or similar means, addressed to such director or
stockholder at his address as it appears on the records of the corporation, in
which case such notice shall be deemed to be given when delivered into the
control of the persons charged with effecting such transmission, the
transmission charge to be paid by the corporation or the person sending such
notice and not by the addressee. Oral notice or other in hand delivery (in
person or by telephone) shall be deemed given at the time it is actually given.
Section 2. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of law or of the certificate of incorporation or of
these bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE V
INDEMNIFICATION
Section 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 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 in connection with such action, suit or proceeding
if he acted in good
8
faith and in a manner he 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 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 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 conduct was unlawful.
Section 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 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 in connection with
the defense or settlement of such action or suit if he acted in good faith and
in a manner he 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 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.
Section 3. SUCCESS ON THE MERITS. To the extent that any person
described in Section 1 or 2 of this Article V 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
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 4. SPECIFIC AUTHORIZATION. Any indemnification under Section
1 or 2 of this Article V (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 has met the applicable standard of conduct set forth
in said Sections. Such determination shall be made (1) by the board of
directors by a majority vote of directors who were not parties to such action,
suit or proceeding (even though less than a quorum), or (2) if there are no
disinterested directors or if a majority of disinterested directors so
directs, by independent legal counsel (who may be regular legal counsel to the
corporation) in a written opinion, or (3) by the stockholders of the
corporation.
Section 5. ADVANCE PAYMENT. Expenses incurred in defending a pending
or threatened civil or criminal 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
9
determined that he is not entitled to indemnification by the corporation as
authorized in this Article V.
Section 6. NONEXCLUSIVITY. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other Sections of this
Article V shall not be deemed exclusive of any other rights to which those
provided indemnification or advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
Section 7. INSURANCE. The board of directors 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 and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have
the power to indemnify him against such liability under the provisions of this
Article V.
Section 8. CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article V 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.
Section 9. SEVERABILITY. If any word, clause or provision of this
Article V 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.
Section 10. INTENT OF ARTICLE. The intent of this Article V 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 V 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 VI
CAPITAL STOCK
Section 1. CERTIFICATES OF STOCK. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by, or in the name
of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation, certifying the number of shares owned by him in the corporation.
Any or all of the signatures on the certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the
10
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 3/22/00 | | | | | | | None on these Dates |
| Filed on: | | 3/21/00 |
| | 11/19/96 | | 1 |
| List all Filings |
↑Top
Filing Submission 0000912057-00-012713 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Wed., May 8, 7:46:12.1pm ET 