UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 1, 2006
PHASE III MEDICAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-10909 22-2343568
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(State Or Other Jurisdiction (Commission (IRS Employer
Of Incorporation) File Number) Identification No.)
420 Lexington Avenue, Suite 450, New York, New York 10170
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (631)-584-4174
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On August 1, 2006, the Board of Directors of Phase III Medical, Inc. (the
"Company") approved an amendment to the employment agreement dated June 2, 2006
(the "Employment Agreement") with the Company's Chief Executive Officer, Dr.
Robin L. Smith. Pursuant to Section 11(h) of the Employment Agreement, Dr.
Smith's Advisory Board Agreement with the Company dated September 14, 2005, as
supplemented and extended, was terminated upon the execution of the Employment
Agreement, except for certain provisions, including Dr. Smith's right to receive
a $50,000 payment in the event an aggregate of at least $3,000,000 is raised
and/or other debt or equity financings prior to August 15, 2006. The Board
agreed to amend the Employment Agreement to extend this date until August 31,
2006, the date of termination of the Company's current offering.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On August 1, 2006, the Company's Board approved an amendment to the
Company's Amended and Restated By-laws relating to the duties of the Company's
Chairman of the Board, Chief Executive Officer and President. The Amended and
Restated By-laws are attached to this Form 8-K as Exhibit 3.2.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit 3.2 Amended and Restated By-laws
SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PHASE III MEDICAL, INC.
By: /s/ Catherine M. Vaczy
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Catherine M. Vaczy
General Counsel
Dated: August 7, 2006
EXHIBIT INDEX
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Exhibit Number Description
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Exhibit 3.2 Amended and Restated By-laws of Phase III Medical, Inc.
AMENDED AND RESTATED
BY-LAWS
OF
PHASE III MEDICAL, INC.
A DELAWARE CORPORATION
Dated: August 1, 2006
PHASE III MEDICAL, INC.
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AMENDED AND RESTATED BY-LAWS
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* * * * *
ARTICLE I
MEETINGS OF STOCKHOLDERS
1.1 Place of Meetings. All meetings of the stockholders shall be held
at such place within or without the State of Delaware as may be designated from
time to time by the Chairman of the Board (if any), the board of directors of
the Corporation (the "Board of Directors") or the Chief Executive Officer, or if
not so designated, at the registered office of the Corporation. Notwithstanding
the foregoing, the Board of Directors may, in its sole discretion, determine
that the meeting shall not be held at any place, but may instead be held solely
by means of remote communication as authorized by Section 211(a)(2) of the
General Corporation Law of Delaware. If so authorized, and subject to such
guidelines and procedures as the Board of Directors may adopt, stockholders and
proxyholders not physically present at a meeting of stockholders may, by means
of remote communication, participate in a meeting of stockholders whether such
meeting is to be held at a designated place or solely by means of remote
communication, provided that (i) the Corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at the
meeting by means of remote communication is a stockholder or proxyholder, (ii)
the Corporation shall implement reasonable measures to provide such stockholders
and proxyholders a reasonable opportunity to participate in the meeting and to
vote on matters submitted to the stockholders, including an opportunity to read
or hear the proceedings of the meeting substantially concurrently with such
proceedings, and (iii) if any stockholder or proxyholder votes or takes other
action at the meeting by means of remote communication, a record of such vote or
other action shall be maintained by the Corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the
election of directors and for the transaction of such other business as may
properly be brought before the meeting shall be held, at such date (which date
shall not be a legal holiday in the place where the meeting is to be held) and
time and by such means of remote communication, if any, as shall be designated
from time to time by the Chairman of the Board (if any), the Board of Directors
or the Chief Executive Officer and stated in the notice of the meeting.
1.3 Special Meetings. Special meetings of the stockholders may, unless
otherwise prescribed by law or by the certificate of incorporation, be called by
the Chairman of the Board (if any), the Board of Directors or the Chief
Executive Officer and shall be held at such place, on such date and at such time
as shall be fixed by the Board of Directors or the person calling the meeting.
Business transacted at any special meeting shall be limited to matters relating
to the purpose or purposes stated in the notice of meeting.
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1.4 Notice of Meetings. Except as otherwise provided by law, written
notice of each meeting of stockholders, whether annual or special, stating the
place, date and hour of the meeting, the means of remote communications, if any,
by which stockholders and proxyholders may be deemed to be present in person and
vote at such 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 (10)
nor more than sixty (60) days before the date of the meeting, to each
stockholder entitled to vote at such meeting.
1.5 Voting List. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten (10) 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 (10) days prior to the meeting, either (i) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of the meeting, or (ii) at the
Corporation's principal place of business. In the event that the Corporation
determines to make the list available on an electronic network, the Corporation
may take reasonable steps to ensure that such information is available only to
stockholders of the Corporation. If the meeting is to be held at a place, then
the list shall 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.
If the meeting is to be held solely by means of remote communication, then the
list shall also be open to the examination of any stockholder during the whole
time of the meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the notice of
the meeting.
1.6 Quorum. Except as otherwise required by law, the certificate of
incorporation or these By-Laws, the holders of a majority of the shares of
capital stock of the Corporation issued and outstanding and entitled to vote
thereat, present in person or by remote communication, or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business. Shares held by brokers which such brokers are
prohibited from voting (pursuant to their discretionary authority on behalf of
beneficial owners of such shares who have not submitted a proxy with respect to
such shares) on some or all of the matters before the stockholders but which
shares would otherwise be entitled to vote at the meeting ("Broker Non-Votes")
shall be counted, for the purpose of determining the presence or absence of a
quorum, both (a) toward the total voting power of the shares of capital stock of
the Corporation and (b) as being represented by proxy. If a quorum has been
established for the purpose of conducting the meeting, a quorum shall be deemed
to be present for the purpose of all votes to be conducted at such meeting;
provided that where a separate vote by a class or classes, or series thereof, is
required, a majority of the voting power of the shares of such class or classes,
or series present in person or by remote communication, 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 1.7
hereof, until a quorum shall be present or represented.
1.7 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 By-Laws, which time and place shall be
announced at the meeting, by a majority of the stockholders present in person or
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by remote communication, 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, provided that a quorum either was
present at the original meeting or is present at the adjourned 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, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
1.8 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 and a proportionate vote for each fractional share so
held. Each stockholder entitled to vote at a meeting of stockholders, or to
express consent or dissent to corporate action in writing without a meeting (to
the extent not otherwise prohibited by the certificate of incorporation or these
By-Laws), may authorize another person or persons to act for such stockholder by
proxy, but no such proxy shall be voted or acted upon after three (3) years from
its date, unless the proxy provides for a longer period.
1.9 Action at Meetings. When a quorum is present at any meeting of
stockholders, the affirmative vote of the holders of a majority of the stock
present in person or by remote communication, or represented by proxy, entitled
to vote and voting on the matter (or where a separate vote by a class or
classes, or series thereof, is required, the affirmative vote of the majority of
shares of such class or classes or series 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 By-Laws, 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 by remote communication, or represented by proxy at the meeting,
entitled to vote and voting on the election of Directors, except as otherwise
provided by the certificate of incorporation. For purposes of this paragraph,
Broker Non-Votes represented at the meeting but not permitted to vote on a
particular matter shall not be counted, with respect to the vote on such matter,
in the number of (a) votes cast, (b) votes cast affirmatively, or (c) votes cast
negatively.
1.10 Introduction of Business at Meetings.
A. Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of
Directors and the proposal of business to be considered by the stockholders may
be made at an annual meeting of stockholders (a) pursuant to the Corporation's
notice of meeting, (b) by or at the direction of the Board of Directors or (c)
by any stockholder of the Corporation who was a stockholder of record at the
time of giving of notice provided for in this Section 1.10, who is entitled to
vote at the meeting and who complies with the notice procedures set forth in
this Section 1.10.
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(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this Section 1.10, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
one hundred twentieth (120th) day nor earlier than the close of business on the
one hundred fiftieth (150th) day prior to the first anniversary of the date of
the proxy statement delivered to stockholders in connection with the preceding
year's annual meeting; provided, however, that if either (i) the date of the
annual meeting is more than thirty (30) days before or more than sixty (60) days
after such an anniversary date or (ii) no proxy statement was delivered to
stockholders in connection with the preceding year's annual meeting, notice by
the stockholder to be timely must be so delivered not earlier than the close of
business on the ninetieth (90th) day prior to such annual meeting and not later
than the close of business on the later of (x) the sixtieth (60th) day prior to
such annual meeting and (y) the tenth (10th) day following the day on which
public announcement of the date of such meeting is first made by the
Corporation. Such stockholder's notice shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (b) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and (ii) the class and number of shares of capital stock of the
Corporation that are owned beneficially and held of record by such stockholder
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 1.10 to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the Corporation
is increased and there is no public announcement by the Corporation naming all
of the nominees for director or specifying the size of the increased Board of
Directors at least seventy (70) days prior to the first anniversary of the
preceding year's annual meeting (or, if the annual meeting is held more than
thirty (30) days before or sixty (60) days after such anniversary date, at least
seventy (70) days prior to such annual meeting), a stockholder's notice required
by this Section 1.10 shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive office of the Corporation
not later than the close of business on the tenth (10th) day following the day
on which such public announcement is first made by the Corporation.
B. Special Meetings of Stockholders. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
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before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which Directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
Directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice of
the special meeting, who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 1.10. If the
Corporation calls a special meeting of stockholders for the purpose of electing
one or more directors to the Board of Directors, any such stockholder may
nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A)(2) of this Section 1.10 shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the ninetieth (90th) day prior to such special meeting nor
later than the later of (x) the close of business on the sixtieth (60th) day
prior to such special meeting or (y) the close of business on the tenth (10th)
day following the day on which public announcement is first made of the date of
such special meeting and of the nominees proposed by the Board of Directors to
be elected at such meeting.
C. General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 1.10 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 1.10. Except as otherwise provided by law, the
certificate of incorporation or these By-Laws, the chairman of the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 1.10 and, if any
proposed nomination or business is not in compliance herewith, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 1.10, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
1.10, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in this Section 1.10 shall be deemed to affect
any rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
1.11 Action without Meeting. Stockholders of the Corporation may not
take any action by written consent in lieu of a meeting. Notwithstanding any
other provision of law, the certificate of incorporation or these By-Laws, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least seventy-five percent (75%) of the
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votes which all the stockholders would be entitled to cast at any annual
election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Section 1.11.
1.12 Inspectors. Prior to any meeting of stockholders, the Board of
Directors or the President shall appoint one or more inspectors to act at such
meeting and make a written report thereof and may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at the meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall ascertain the number of shares outstanding and the
voting power of each, determine the shares represented at the meeting and the
validity of proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors and certify their determination of
the number of shares represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons to assist them in
the performance of their duties. The date and time of the opening and closing of
the polls for each matter upon which the stockholders will vote at a meeting
shall be announced at the meeting. No ballot, proxy or vote, nor any revocation
thereof or change thereto, shall be accepted by the inspectors after the closing
of the polls. In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any envelopes
submitted therewith, any information provided by a stockholder who submits a
proxy by telegram, cablegram or other electronic transmission from which it can
be determined that the proxy was authorized by the stockholder, ballots and the
regular books and records of the Corporation, and they may also consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by the
record owner to cast or more votes than the stockholder holds of record. If the
inspectors consider other reliable information for such purpose, they shall, at
the time they make their certification, specify the precise information
considered by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
ARTICLE II
DIRECTORS
2.1 General Powers. The business and affairs of the Corporation shall
be managed by or under the direction of a Board of Directors, who may exercise
all of the powers of the Corporation except as otherwise provided by law or the
certificate of incorporation. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law or the
certificate of incorporation, may exercise the powers of the full Board of
Directors until the vacancy is filled.
2.2 Number; Election and Qualification. The number of directors which
shall constitute the whole Board of Directors shall be determined by resolution
of the Board of Directors, but in no event shall be less than three. Subject to
the preceding sentence, the number of Directors may be decreased at any time and
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from time to time by a majority of the directors then in office, but only to
eliminate vacancies existing by reason of the death, resignation, removal or
expiration of the term of one or more directors. The Directors shall be elected
at the annual meeting of stockholders (or, if so determined by the Board of
Directors pursuant to Section 2.10 hereof, at a special meeting of
stockholders), by such stockholders as have the right to vote on such election.
Directors need not be stockholders of the Corporation.
2.3 Tenure. Each Director shall serve for a term ending on the date of
the annual meeting following the annual meeting at which such Director was
elected. Notwithstanding any provisions to the contrary contained herein, each
Director shall hold office until his or her successor is elected and qualified,
or until his or her earlier death, resignation or removal.
2.4 Vacancies. Unless and until filled by the stockholders, any
vacancy in the Board of Directors, however occurring, including a vacancy
resulting from an enlargement thereof, may be filled only by vote of a majority
of the Directors then in office, although less than a quorum, or by a sole
remaining Director. A Director elected to fill a vacancy shall be elected for
the unexpired term of his or her predecessor in office, if applicable, and a
Director chosen to fill a position resulting from an increase in the number of
Directors shall hold office until the next election of Directors and until his
or her successor is elected and qualified, or until his or her earlier death,
resignation or removal.
2.5 Resignation. Any director may resign at any time upon notice given
in writing or by electronic transmission to the Corporation at its principal
place of business or to the Chief Executive 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.
2.6 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 office of the Chairman of
the Board or as may be vested in him by the Board of Directors.
2.7 Place of Meetings. The Board of Directors may hold meetings, both
regular and special, either within or without the State of Delaware.
2.8 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 of Directors; provided that any Director who is
absent when such a determination is made shall be given 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.
2.9 Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman of the Board (if any), the Chief Executive Officer,
two (2) or more Directors, or by one Director in the event that there is only
one Director in office. At least one (1) days' notice to each Director, either
personally or by telegram, cable, telecopy, electronic mail, commercial delivery
service, telex or similar means sent to his business or home address, or three
(3) days' notice by written notice deposited in the mail, shall be given to each
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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.
2.10 Quorum, Action at Meeting, Adjournments. At all meetings of the
Board of Directors a majority of Directors then in office shall constitute a
quorum for the transaction of business. In the event one or more of the
Directors shall be disqualified to vote at any meeting, then the required quorum
shall be reduced by one for each so disqualified; provided however, that in no
case shall less than one third of the entire Board of Directors constitute a
quorum for the transaction of business. 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, the
certificate of incorporation or these By-Laws. For purposes of this section, the
term "entire Board of Directors" shall mean the number of Directors last fixed
by the stockholders or Directors, as the case may be, in accordance with law,
the certificate of incorporation and these By-Laws; provided, however, that if
less than all the number so fixed of Directors were elected, the "entire Board
of Directors" 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.
2.11 Action by Consent. Unless otherwise restricted by the certificate
of incorporation or these By-Laws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all members of the Board of Directors or committee,
as the case may be, consent thereto in writing or electronic transmission, and
the writing or writings or electronic transmission or transmissions are filed
with the minutes of proceedings of the Board of Directors or committee. Such
filing shall be in paper form if the minutes are maintained in paper form and
shall be in electronic form if the minutes are maintained in electronic form.
2.12 Telephonic Meetings. Unless otherwise restricted by the
certificate of incorporation or these By-Laws, 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.
2.13 Removal. Unless otherwise provided in the certificate of
incorporation, any one or more or all of the Directors may be removed without
cause by the holders of at least seventy-five percent (75%) of the shares then
entitled to vote at an election of Directors. Any one or more or all of the
Directors may be removed with cause only by the holders of at least a majority
of the shares then entitled to vote at an election of Directors.
2.14 Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the Directors of the
Corporation. 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. Any such committee, to the extent
provided in the resolution of the Board of Directors and subject to the
provisions of the General Corporation Law of Delaware, shall have and may
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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 (a) adopting,
amending or repealing the By-Laws of the Corporation or any of them or (b)
approving or adopting, or recommending to the stockholders any action or matter
expressly required by law to be submitted to stockholders for approval. 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
rules, its business shall be conducted as nearly as possible in the same manner
as is provided in these By-Laws for the conduct of its business by the Board of
Directors. Adequate provisions shall be made for notice to members of all
meetings of committees. One third of the members of any committee shall
constitute a quorum unless the committee shall consist of one or two members, in
which event one member shall constitute a quorum, and all matters shall be
determined by a majority vote of the members present.
2.15 Compensation. Unless otherwise restricted by the certificate of
incorporation or these By-Laws, 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 and may be
paid a fixed sum for attendance at each meeting of the Board of Directors and/or
a stated salary as a 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.
2.16 Amendments to Article. Notwithstanding any other provisions of
law, the certificate of incorporation or these By-Laws, and notwithstanding the
fact that a lesser percentage may be specified by law, the affirmative vote of
the holders of a least seventy-five percent (75%) of the votes which all the
stockholders would be entitled to cast at any annual election of directors or
class of directors shall be required to amend or repeal, or to adopt any
provision inconsistent with, this Article II.
ARTICLE III
OFFICERS
3.1 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 one or more
Vice-Presidents, and one or more Assistant Secretaries and Assistant Treasurers.
Any number of offices may be held by the same person, unless the certificate of
incorporation or these By-Laws otherwise provide.
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3.2 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.
3.3 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 them, or until their earlier death, resignation
or removal. Any officer may be removed at any time, with or without cause, by
the affirmative vote of a majority of the Board of Directors. 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 Chairman of the Board (if any), to the Board of Directors at
a meeting thereof, 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.
3.4 Chairman of the Board. The Chairman of the Board shall be the
Chief Executive Officer of the Corporation. Subject only to the direction and
control of the Board, the Chairman shall have general charge and supervision
over, and responsibility for, the business and affairs of the Corporation.
Unless otherwise directed by the Board, all other Officers shall be subject to
the authority and supervision of the Chairman. The Chairman may enter into and
execute in the name of the Corporation contracts and other instruments in the
regular course of business which are authorized, either generally or
specifically, by the Board. The Chairman shall have the general powers and
duties of management usually vested in the Chairman of a business corporation
and shall have such other powers and duties as may be prescribed by the Board.
3.5 President. In the event the Board so designates, in the Chairman's
absence or inability to act, the President shall be the Chief Executive Officer
of the Corporation. Otherwise, the President shall be responsible only to the
Chairman and to the Board for those areas of operation of the business and
affairs of the Corporation as shall be delegated to the President by the Board
or by the Chairman. If specified by the Board or by the Chairman, all other
Officers of the Corporation (except the Chairman) shall be subject to the
authority and supervision of the President. The President may enter into and
execute in the name of the corporation contracts or other instruments in the
regular course of business that are authorized, either generally or
specifically, by the Board.
3.6 Vice-Presidents. In the absence of the President or in the event
of his or her 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 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. The Vice-Presidents shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
3.7 Secretary. The Secretary shall have such powers and perform such
duties as are incident to the office of Secretary. The Secretary 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
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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. The Secretary 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 the Secretary shall be. The Secretary shall have custody of
the corporate seal of the Corporation and the Secretary, 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 or her 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 or her signature.
3.8 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 or her 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.
3.9 Treasurer. The Treasurer shall perform such duties and shall have
such powers as may be assigned to him or her 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 or her transactions as Treasurer and of the financial
condition of the Corporation.
3.10 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 or her 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.
3.11 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.
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3.12 Action with Respect to Securities of Other Corporations. The
President, the Chief Executive Officer, the Treasurer or any officer of the
Corporation authorized by the Board of Directors shall, unless otherwise
directed by the Board of Directors, have power to vote and otherwise act on
behalf of the Corporation, in person or by proxy, at any meeting of stockholders
of or with respect to any action of stockholders of any other corporation in
which the Corporation may hold securities and otherwise to exercise any and all
rights and powers which this Corporation may possess by reason of its ownership
of securities in such other corporation.
ARTICLE IV
NOTICES
4.1 Delivery. Except as otherwise specifically provided herein or
required by law or the certificate of incorporation, all notices required to be
given to any person under these By-Laws, such notice may be given by mail,
addressed to such person, 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, notice may also be given by
telegram, cable, telecopy, commercial delivery service, telex or similar means,
addressed to such person 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. Notice may also be given to
stockholders by a form of electronic transmission in accordance with and subject
to the provisions of Section 232 of the General Corporation Law of Delaware.
Oral notice or other in-hand delivery (in person or by telephone) shall be
deemed given at the time it is actually given.
4.2 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
By-Laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice or a waiver by electronic transmission by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE V
CAPITAL STOCK
5.1 Issuance of Stock. Unless otherwise voted by the stockholders and
subject to the provisions of the certificate of incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the Corporation
or the whole or any part of any issued, authorized capital stock of the
Corporation held in its treasury may be issued, sold, transferred or otherwise
disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
5.2 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 such holder in the Corporation. Any or all of the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue. Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the certificate of incorporation, these
By-Laws, applicable securities laws or any agreement among any number of
shareholders or among any such holders and the Corporation shall have
conspicuously noted on the face or back of such certificate either the full text
of such restriction or a statement of the existence of such restriction.
5.3 Lost, Stolen or Destroyed Certificates. The Corporation may issue
a new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors or the Chief Executive Officer may, in
their discretion and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to give reasonable evidence of such loss, theft or
destruction, to advertise the same in such manner as it shall require and/or to
give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed or the issuance of
such new certificate.
5.4 Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which shall not be more than sixty (60)
days nor less then ten (10) days before the date of such meeting. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting. If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
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be at the close of business on the day before the day on which notice is given,
or, if notice is waived, at the close of business on the day before the day on
which the meeting is held. In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix a record date, which
shall not precede the date upon which the resolution fixing the record date is
adopted, and which shall be not more than sixty (60) days prior to such action.
If no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to such purpose.
5.5 Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VI
CERTAIN TRANSACTIONS
6.1 Transactions with Interested Parties. No contract or transaction
between the Corporation and one or more of its Directors or officers, or between
the Corporation and any other corporation, partnership, association, or other
organization in which one or more of its Directors or officers are Directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction or solely because his, her or their votes
are counted for such purpose, if:
(a) the material facts as to the relationship or interest and
as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board of
Directors or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the
disinterested Directors, even though the disinterested Directors
be less than a quorum; or
(b) the material facts as to the relationship or interest and
as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(c) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof, or the stockholders.
6.2 Quorum. Common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
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ARTICLE VII
GENERAL PROVISIONS
7.1 Fiscal Year. The fiscal year of the Corporation shall be the
calendar year unless otherwise fixed by resolution of the Board of Directors.
7.2 Seal. The Board of Directors may, by resolution, adopt a corporate
seal. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the word "Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. The seal may be altered from time to time by the Board
of Directors.
7.3 Facsimile Signatures. In addition to the provisions for use of
facsimile signatures elsewhere specifically authorized by these By-Laws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
7.4 Time Periods. In applying any provision of these By-Laws that
requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, unless otherwise required by law or the certificate of
incorporation, calendar days shall be use, the day of the doing of the act shall
be excluded, and the day of the event shall be included.
7.5 Certificate of Incorporation. All references in these By-Laws to
the certificate of incorporation shall be deemed to refer to the certificate of
incorporation of the Corporation, as amended and restated and in effect from
time to time.
7.6 Severability. Any determination that any provision of these
By-Laws is for any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-Laws.
7.7 Pronouns. All pronouns used in these By-Laws shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person or persons so designated may require.
ARTICLE VIII
AMENDMENTS
8.1 By the Board of Directors. Except as is otherwise set forth in
these By-Laws or the certificate of incorporation, these By-Laws may be altered,
amended or repealed, or new by-laws may be adopted, by the affirmative vote of a
majority of the directors present at any regular or special meeting of the Board
of Directors at which a quorum is present.
8.2 By the Stockholders. Except as otherwise set forth in these
By-Laws or the certificate of incorporation, these By-Laws may be altered,
amended or repealed or new by-laws may be adopted by the affirmative vote of the
holders of at least seventy-five percent (75%) of the voting power of all the
then outstanding shares of capital stock of the Corporation entitled to vote at
any regular meeting of stockholders, or at any special meeting of stockholders,
voting together as a single class; provided notice of such alteration,
amendment, repeal or adoption of new by-laws shall have been stated in the
notice of such special meeting.
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