Attached files
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8-K - FORM 8-K - VALEANT PHARMACEUTICALS INTERNATIONAL | y86905e8vk.htm |
EX-4.1 - EX-4.1 - VALEANT PHARMACEUTICALS INTERNATIONAL | y86905exv4w1.htm |
EX-3.1 - EX-3.1 - VALEANT PHARMACEUTICALS INTERNATIONAL | y86905exv3w1.htm |
EX-4.2 - EX-4.2 - VALEANT PHARMACEUTICALS INTERNATIONAL | y86905exv4w2.htm |
EX-10.1 - EX-10.1 - VALEANT PHARMACEUTICALS INTERNATIONAL | y86905exv10w1.htm |
EX-99.2 - EX-99.2 - VALEANT PHARMACEUTICALS INTERNATIONAL | y86905exv99w2.htm |
EX-99.3 - EX-99.3 - VALEANT PHARMACEUTICALS INTERNATIONAL | y86905exv99w3.htm |
EX-99.1 - EX-99.1 - VALEANT PHARMACEUTICALS INTERNATIONAL | y86905exv99w1.htm |
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
VALEANT PHARMACEUTICALS INTERNATIONAL
ARTICLE I
Meetings of Stockholders; Stockholders
Consent in Lieu of Meeting
Consent in Lieu of Meeting
SECTION 1.01. Annual Meeting. The annual meeting of the stockholders for the
election of directors, and for the transaction of such other business as may properly come before
the meeting, shall be held at such place, date and hour as shall be fixed by the Board of Directors
and designated in the notice or waiver of notice thereof; except that no annual meeting need be
held if all actions, including the election of directors, required by the General Corporation Law
of the State of Delaware to be taken at a stockholders annual meeting are taken by written consent
in lieu of meeting pursuant to Section 1.03 of this Article.
SECTION 1.02. Special Meetings. A special meeting of the stockholders for any
purpose or purposes may be called by the Board of Directors, the Chairman of the Board of
Directors, the President or the Secretary of the Corporation or a stockholder or stockholders
holding of record at least a majority of the shares of common stock, par value $0.01 per share, of
the Corporation (Common Stock) issued and outstanding, such meeting to be held at such
place, date and hour as shall be designated in the notice or waiver of notice thereof.
SECTION 1.03. Stockholders Consent in Lieu of Meeting. Any action required by the
laws of the State of Delaware to be taken at any annual or special meeting of the stockholders of
the Corporation, 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
in writing, setting forth the action so taken, shall be signed by all the stockholders.
SECTION 1.04. Quorum and Adjournment. Except as otherwise provided by law, by the
Certificate of Incorporation of the Corporation or by these By-laws, the presence, in person or by
proxy, of the holders of a majority of the aggregate voting power of the stock issued and
outstanding, entitled to vote thereat, shall be requisite and shall constitute a quorum for the
transaction of business at all meetings of stockholders. If, however, such a quorum shall not be
present or represented at any meeting of stockholders, the stockholders present, although less than
a quorum, shall have the power to adjourn the meeting.
SECTION 1.05. Majority Vote Required. When a quorum is present at any meeting of
stockholders, the affirmative vote of the majority of the aggregate voting power of the shares
present in person or represented by proxy at the meeting and entitled to vote on the subject matter
shall constitute the act of the stockholders, unless 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.
SECTION 1.06. Manner of Voting. At each meeting of stockholders, each stockholder
having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be
filed with the Secretary of the Corporation until the meeting is called
to order, but shall be filed before being voted. Each stockholder shall be entitled to vote
each share of stock having voting power registered in his or her name on the books of the
Corporation on the record date fixed, as provided in Section 6.07 of these By-laws, for the
determination of stockholders entitled to vote at such meeting. No election of directors need be
by written ballot.
ARTICLE II
Board of Directors
SECTION 2.01. General Powers. The management of the affairs of the Corporation shall
be vested in the Board of Directors, which may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by law or by the Certificate of Incorporation directed
or required to be exercised or done by the stockholders.
SECTION 2.02. Number and Term of Office. The number of directors which shall
constitute the whole Board of Directors shall be fixed from time to time by a vote of a majority of
the whole Board of Directors. The term whole Board of Directors is used herein to refer to the
total number of directors which the Corporation would have if there were no vacancies. Directors
need not be stockholders. Each director shall hold office until his successor is elected and
qualified, or until his earlier death or resignation or removal in the manner hereinafter provided.
SECTION 2.03. Resignation, Removal and Vacancies. Any director may resign at any
time by giving written notice of his resignation to the Board of Directors, the Chairman of the
Board of Directors, the President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein or, if the time be not
specified, upon receipt thereof; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Any director or the entire Board of Directors may be removed, with or without cause, at any
time by the holders of a majority of the shares then entitled to vote at an election of directors
or by written consent of the stockholders pursuant to Section 1.03 of Article I hereof.
Vacancies in the Board of Directors 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, although less than a quorum, or by a sole remaining director.
SECTION 2.04. Meetings. (a) Annual Meeting. As soon as practicable after
each annual election of directors, the Board of Directors shall meet for the purpose of
organization and the transaction of other business, unless it shall have transacted all such
business by written consent pursuant to Section 2.05 of this Article.
(b) Other Meetings. Other meetings of the Board of Directors shall be held at such
times and places as the Board of Directors, the Chairman of the Board of Directors or the President
shall from time to time determine.
(c) Notice of Meetings. The Secretary of the Corporation shall give notice to each
director of each meeting, including the time, place and purpose of such meeting. Notice of each
such meeting shall be mailed to each director, addressed to him at his residence or usual place of
business, at least two days before the day on which such meeting is to be held, or shall be sent to
him at such place by telegraph, cable, wireless or other form of recorded communication, or be
delivered personally or by telephone not
later than the day before the day on which such meeting is to be held, but notice need not be
given to any director who shall attend such meeting. A written waiver of notice, signed by the
person entitled thereto, whether before or after the time of the meeting stated therein, shall be
deemed equivalent to notice.
(d) Place of Meetings. The Board of Directors may hold its meetings at such place or
places within or without the State of Delaware as the Board of Directors may from time to time
determine, or as shall be designated in the respective notices or waivers of notice thereof.
(e) Quorum and Manner of Acting. One third of the total number of directors then in
office (but not less than two) shall be present in person at any meeting of the Board of Directors
in order to constitute a quorum for the transaction of business at such meeting, and the vote of a
majority of those directors present at any such meeting at which a quorum is present shall be
necessary for the passage of any resolution or act of the Board of Directors, except as otherwise
expressly required by law or these By-laws. In the absence of a quorum for any such meeting, a
majority of the directors present thereat may adjourn such meeting from time to time until a quorum
shall be present.
(f) Organization. At each meeting of the Board of Directors, one of the following
shall act as chairman of the meeting and preside, in the following order of precedence:
(i) the Chairman of the Board of Directors;
(ii) the President (if the President shall be a member of the Board of Directors at
such time); and
(iii) any director chosen by a majority of the directors present.
The Secretary of the Corporation or, in the case of his absence, any person (who shall be an
Assistant Secretary of the Corporation, if an Assistant Secretary of the Corporation is present)
whom the Chairman of the Board of Directors shall appoint shall act as secretary of such meeting
and keep the minutes thereof.
SECTION 2.05. Directors Consent in Lieu of Meeting. 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 and the writing or writings are filed with the minutes or the
proceedings of the Board of Directors or committee.
SECTION 2.06. Action by Means of Conference Telephone or Similar Communications
Equipment. Any one or more members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors or any such
committee by means of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation in a meeting by
such means shall constitute presence in person at such meeting.
ARTICLE III
Committees of the Board
SECTION 3.01. Appointment of Executive Committee. The Board of Directors may from
time to time by resolution passed by a majority of the whole Board of Directors designate from its
members an Executive Committee to serve at the pleasure of the Board of Directors. The Chairman of
the Executive Committee shall be designated by the Board of Directors. The Board of Directors may
designate one or more directors as alternate members of the Executive Committee, who may replace
any absent or
disqualified member or members at any meeting of the Executive Committee. The Board of
Directors shall have power at any time to change the membership of the Executive Committee, to fill
all vacancies in it and to discharge it, either with or without cause.
SECTION 3.02. Procedures of Executive Committee. The Executive Committee, by a vote
of a majority of its members, shall fix by whom its meetings may be called and the manner of
calling and holding its meetings, shall determine the number of its members requisite to constitute
a quorum for the transaction of business and shall prescribe its own rules of procedure, no change
in which shall be made except by a majority vote of its members or by the Board of Directors.
SECTION 3.03. Powers of Executive Committee. During the intervals between the
meetings of the Board of Directors, unless otherwise determined from time to time by resolution
passed by the whole Board of Directors, the Executive Committee shall possess and may exercise all
the powers and authority of the Board of Directors in the management and direction of the business
and affairs of the Corporation to the extent permitted by the General Corporation Law of Delaware,
and may authorize the seal of the Corporation to be affixed to all papers which may require it,
except that the Executive Committee shall not have power or authority in reference to:
(a) amending the Certificate of Incorporation;
(b) adopting an agreement of merger or consolidation;
(c) recommending to the stockholders the sale, lease or exchange of all or substantially all
of the Corporations property and assets;
(d) recommending to the stockholders a dissolution of the Corporation or a revocation of a
dissolution;
(e) submitting to stockholders of the Corporation any action which pursuant to the General
Corporation Law of the State of Delaware requires stockholders approval;
(f) filling vacancies in the Board of Directors or in any committee or fixing compensation of
members of the Board of Directors for serving on the Board of Directors or on any committee;
(g) amending or repealing these By-laws;
(h) declaring a dividend or authorizing the issuance of stock; or
(i) amending or repealing any resolution of the Board of Directors which by its terms is not
so amendable or repealable.
SECTION 3.04. Reports of Executive Committee. The Executive Committee shall keep
regular minutes of its proceedings, and all action by the Executive Committee shall be reported
promptly to the Board of Directors. Such action shall be subject to review by the Board of
Directors, provided that no rights of third parties shall be affected by such review.
SECTION 3.05. Other Committees. The Board of Directors, by resolution adopted by a
majority of the whole Board of Directors, may designate from among its members one or more other
committees, each of which shall have such authority of the Board of Directors as may be specified
in the resolution of the Board of Directors designating such committee; provided,
however, that any such committee so designated shall not have any powers not allowed to the
Executive Committee under Section 3.03 of this Article III. The Board of Directors shall have
power at any time to change the members of any such committee, designate alternate members of any
such
committee and fill vacancies therein; and any such committee shall serve at the pleasure of
the Board of Directors.
ARTICLE IV
Officers
SECTION 4.01. Executive Officers. The executive officers of the Corporation shall be
a President, a Secretary and a Treasurer and may include a Chairman of the Board of Directors, one
or more Vice Presidents and one or more Assistant Secretaries or Assistant Treasurers. Any two or
more offices may be held by the same person.
SECTION 4.02. Authority and Duties. All officers, as between themselves and the
Corporation, shall have such authority and perform such duties in the management of the Corporation
as may be provided in these By-laws or, to the extent not so provided, by the Board of Directors.
SECTION 4.03. Term of Office, Resignation and Removal. All officers shall be elected
or appointed by the Board of Directors and shall hold office for such term as may be prescribed by
the Board of Directors. The Chairman of the Board of Directors, if any, shall be elected or
appointed from among the members of the Board of Directors. Each officer shall hold office until
his successor has been elected or appointed and qualified or his earlier death or resignation or
removal in the manner hereinafter provided. The Board of Directors may require any officer to give
security for the faithful performance of his duties.
Any officer may resign at any time by giving written notice to the President or the Secretary
of the Corporation, and such resignation shall take effect at the time specified therein or, if the
time when it shall become effective is not specified
therein, at the time it is accepted by action of the Board of Directors. Except as aforesaid,
the acceptance of such resignation shall not be necessary to make it effective.
All officers and agents elected or appointed by the Board of Directors shall be subject to
removal at any time by the Board of Directors with or without cause.
SECTION 4.04. Vacancies. If an office becomes vacant for any reason, the Board of
Directors shall fill such vacancy. Any officer so appointed or elected by the Board of Directors
shall serve only until such time as the unexpired term of his predecessor shall have expired unless
reelected or reappointed by the Board of Directors.
SECTION 4.05. Chairman of the Board of Directors. If there shall be a Chairman of
the Board of Directors, he shall preside at meetings of the Board of Directors and of the
stockholders at which he is present, and shall give counsel and advice to the Board of Directors
and the officers of the Corporation on all subjects touching the welfare of the Corporation and the
conduct of its business. He shall perform such other duties as the Board of Directors may from
time to time determine. Except as otherwise provided by resolution of the Board of Directors he
shall be ex officio a member of all committees of the Board of Directors.
SECTION 4.06. The President. The President shall be the Chief Executive Officer of
the Corporation and, unless the Chairman of the Board of Directors be present or the Board of
Directors has provided otherwise by resolution, he shall preside at all meetings of the Board of
Directors and the stockholders at which he is present except, in the case of a meeting of the Board
of Directors, if the President is not a member of the Board of Directors at such time. He shall
have general and active management and control of the business and affairs of the Corporation
subject to the
control of the Board of Directors and the Executive Committee, if any, and shall see that all
orders and resolutions of the Board of Directors and the Executive Committee, if any, are carried
into effect.
SECTION 4.07. Vice Presidents. The Vice President of the Corporation, if any, or if
there be more than one, the Vice Presidents in the order of their seniority or in any other order
determined by the Board of Directors, shall, in the absence or disability of the President, perform
the duties and exercise the powers of the President, and shall generally assist the President and
perform such other duties as the Board of Directors or the President shall prescribe.
SECTION 4.08. The Secretary. The Secretary of the Corporation shall, to the extent
practicable, attend all meetings of the Board of Directors and all meetings of the stockholders and
shall record all votes and the minutes of all proceedings 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 of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or the President, under
whose supervision he shall perform such duties. He shall keep in safe custody the seal of the
Corporation and affix the same to any duly authorized instrument requiring it and, when so affixed,
it shall be attested by his signature or by the signature of the Treasurer or an Assistant
Secretary or Assistant Treasurer. He shall keep in safe custody the certificate books and
stockholder records and such other books and records as the Board of Directors may direct and shall
perform all other duties as from time to time may be assigned to him by the Chairman of the Board
of Directors, the President or the Board of Directors.
SECTION 4.09. Assistant Secretaries. The Assistant Secretary of the Corporation, if
any, or if there be more than one, the Assistant Secretaries in order of their seniority or in any
other order determined by the Board of Directors shall, in the absence or disability of the
Secretary of the Corporation, perform the duties and exercise the powers of the Secretary of the
Corporation and shall perform such other duties as the Board of Directors or the Secretary of the
Corporation shall prescribe.
SECTION 4.10. The Treasurer. The Treasurer shall have the care and custody of the
corporate funds and other valuable effects, including 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 to the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall disburse the
funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for
such disbursements, and shall render to the President and directors, at the regular meetings of the
Board of Directors, or whenever they may require it, an account of all his transactions as
Treasurer and of the financial condition of the Corporation; and, in general, perform all the
duties incident to the office of Treasurer and such other duties as from time to time may be
assigned to him by the President or the Board of Directors.
SECTION 4.11. Assistant Treasurers. The Assistant Treasurer of the Corporation, if
any, or if there be more than one, the Assistant Treasurers in the order of their seniority or in
any other order determined by the Board of Directors, shall in the absence or disability of the
Treasurer perform the duties and exercise the powers of the
Treasurer and shall perform such other duties as the Board of Directors or the Treasurer shall
prescribe.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, etc.
SECTION 5.01. Execution of Documents. The Board of Directors shall designate the
officers, employees and agents of the Corporation who shall have power to execute and deliver
deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of
money and other documents for and in the name of the Corporation, and may authorize such officers,
employees and agents to delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation; and, unless so designated or
expressly authorized by these By-laws, no officer or agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement or to pledge its credit or to
render it liable pecuniarily for any purpose or to any amount.
SECTION 5.02. Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation or otherwise as the Board of Directors
or Treasurer or any other officer of the Corporation to whom power in this respect shall have been
given by the Board of Directors shall select.
SECTION 5.03. Proxies in Respect of Stock or Other Securities of Other Corporations.
The Board of Directors shall designate the officers of the Corporation who shall have authority
from time to time to appoint an agent or agents of the Corporation to exercise in the name and on
behalf of the Corporation the powers and rights which the Corporation may have as the holder of
stock or other securities in any other Corporation,
and to vote or consent in respect of such stock or securities; such designated officers may
instruct the person or persons so appointed as to the manner of exercising such powers and rights;
and such designated officers may execute or cause to be executed in the name and on behalf of the
Corporation and under its corporate seal, or otherwise, such written proxies, powers of attorney or
other instruments as they may deem necessary or proper in order that the Corporation may exercise
its said powers and rights.
ARTICLE VI
Shares and Their Transfer; Fixing Record Date
SECTION 6.01. Certificates for Shares. Every owner of stock of the Corporation shall
be entitled to have a certificate certifying the number and class of shares owned by him in the
Corporation, which shall otherwise be in such form as shall be prescribed by the Board of
Directors. Certificates of each class shall be issued in consecutive order and shall be numbered
in the order of their issue, and shall be signed by, or in the name of the Corporation by the
Chairman of the Board of Directors, the President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation.
SECTION 6.02. Record. A record (herein called the stock record) in one or
more counterparts shall be kept of the name of the person, firm or Corporation owning the shares
represented by each certificate for stock of the Corporation issued, the number of shares
represented by each such certificate, the date thereof and, in the case of cancelation, the date of
cancelation. Except as otherwise expressly required by law, the person in whose name shares of
stock stand on the stock record of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation.
SECTION 6.03. Registration of Stock. Registration of transfers of shares of the
Corporation shall be made only on the books of the Corporation upon request of the registered
holder thereof, or of his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Corporation, and upon the surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a stock power duly executed.
SECTION 6.04. Addresses of Stockholders. Each stockholder shall designate to the
Secretary of the Corporation an address at which notices of meetings and all other corporate
notices may be served or mailed to him, and, if any stockholder shall fail to designate such
address, corporate notices may be served upon him by mail directed to him at his post office
address, if any, as the same appears on the share record books of the Corporation or at his last
known post office address.
SECTION 6.05. Lost, Destroyed and Mutilated Certificates. The Board of Directors or
a committee designated thereby with power so to act may, in its discretion, cause to be issued a
new certificate or certificates for stock of the Corporation in place of any certificate issued by
it and reported to have been lost, destroyed or mutilated, upon the surrender of the mutilated
certificates or, in the case of loss or destruction of the certificate, upon satisfactory proof of
such loss or destruction, and the Board of Directors or such committee may, in its discretion,
require the owner of the lost or destroyed certificate or his legal representative to give the
Corporation a bond in such sum and with such surety or sureties as it may direct to indemnify the
Corporation against any claim that may be made against it on account of the alleged loss or
destruction of any such certificate.
SECTION 6.06. Regulations. The Board of Directors may make such rules and
regulations as it may deem expedient, not inconsistent with these By-laws, concerning the issue,
transfer and registration of certificates for stock of the Corporation.
SECTION 6.07. Fixing Date for Determination of Stockholders of Record. In order that
the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than 50 nor less than 10 days before the date of
such meeting, nor more than 50 days prior to any other action. A determination of stockholders
entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
ARTICLE VII
Fiscal Year
The fiscal year of the Corporation shall end on the 31st day of December in each year unless
changed by resolution of the Board of Directors.
ARTICLE VIII
Indemnification and Insurance
SECTION 8.01. Indemnification. (a) (i) Any person made, or threatened to be made, a
party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he, his
testator or intestate is or was a director, officer, employee or agent of the Corporation or
any Corporation which consolidates or merges with or into the Corporation and which if its separate
existence had continued would have had power and authority to indemnify such person (a
Predecessor), shall be indemnified by the Corporation and (ii) any person made, or
threatened to be made, a party to such an action, suit or proceeding, by reason of the fact that
he, his testator or intestate is or was serving as a director, officer, employee or agent at the
request of the Corporation, of any other Corporation or any partnership, joint venture, trust or
other enterprise (an Affiliate), may, at the discretion of the Board of Directors, be
indemnified by the Corporation, in each case, 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, or in connection with any appeal therein; provided
that such person acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, Predecessor or Affiliate, as the case may be, or
with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct
unlawful; except, in the case of an action, suit or proceeding by or in the right of the
Corporation in relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such director, officer, employee or agent is liable for negligence or misconduct in
the performance of his duties, unless a court of competent jurisdiction shall determine that,
despite such adjudication, such person is fairly and reasonably entitled to indemnification.
(b) Without limitation of any right conferred by paragraph (a) of this Section 8.01, (i) any
person made, or threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he, his testator or intestate is or was a director,
officer, employee or agent of the Corporation or a Predecessor and is or was serving as a fiduciary
of, or otherwise rendering services to, any employee benefit plan of, or relating to the
Corporation or a Predecessor, shall be indemnified by the Corporation, and (ii) any person made, or
threatened to be made, a party to such an action, suit or proceeding, by reason of the fact that
he, his testator or intestate is or was serving as a director, officer, employee or agent at the
request of the Corporation or an Affiliate, and is or was serving as a fiduciary of, or otherwise
rendering services to, any employee benefit plan of, or relating to such Affiliate, may, at the
discretion of the Board of Directors, be indemnified by the Corporation, in each case, against
expenses (including attorneys fees), judgments, fines, excise taxes and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or proceeding, or in
connection with any appeal therein; provided that such person acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the Corporation,
Predecessor or Affiliate, as the case may be, or with respect to a criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful; except in the case of an action, suit
or proceeding by or in the right of the Corporation in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such director, officer, employee or agent is
liable for negligence or misconduct in the performance of his duties, unless a court of competent
jurisdiction shall determine that, despite such adjudication, such person is fairly and reasonably
entitled to indemnification.
(c) The foregoing rights of indemnification shall not be deemed exclusive of any other rights
to which any director, officer, employee or agent may be entitled or of any power of the
Corporation apart from the provisions of this Section 8.01.
SECTION 8.02. Insurance for Indemnification. The Corporation may purchase and
maintain insurance for the indemnification of the Corporation and the directors, officers,
employees and agents of the Corporation to the full extent and in the manner permitted by the
applicable laws of the United States and the State of Delaware from time to time in effect.
ARTICLE IX
Waiver of Notice
Whenever any notice whatever is required to be given by these By-laws or the Certificate of
Incorporation of the Corporation or the laws of the State of Delaware, the person entitled thereto
may, in person or by attorney thereunto authorized, in writing or by telegraph, cable or other form
of recorded communication, waive such notice, whether before or after the meeting or other matter
in respect of which such notice is given, and in such event such notice need not be given to such
person and such waiver shall be deemed equivalent to such notice.
ARTICLE X
Amendments
Any Bylaw (including these By-laws) may be adopted, amended or repealed by the Board of
Directors in any manner not inconsistent with the laws of the State of Delaware or the Certificate
of Incorporation.