EXHIBIT 3.4
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ELAN FINANCE CORP.
BY-LAWS
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TABLE OF CONTENTS
ARTICLE I
INTERPRETATION
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place and Time...................................................1
Section 2. Annual Meeting...................................................1
Section 3. Special Meetings.................................................2
Section 4. Chairman.........................................................2
Section 5. Quorum...........................................................2
Section 6. Voting; Proxies..................................................2
Section 7. Action Without Meeting...........................................2
ARTICLE III
MEETINGS OF DIRECTORS
Section 1. General Powers...................................................3
Section 2. Number; Qualifications...........................................3
Section 3. Vacancies........................................................3
Section 4. Resignation......................................................3
Section 5. Place, Time and Notice...........................................3
Section 6. Telephonic Meetings Permitted....................................4
Section 7. Quorum...........................................................4
Section 8. Chairman.........................................................4
Section 9. Interest of Directors and Officers Generally in Contracts........4
Section 10. Action in Writing by Directors...................................5
Section 11. Compensation of Directors........................................5
ARTICLE IV
COMMITTEES
Section 1. Committees.......................................................5
Section 2. Committee Rules..................................................5
ARTICLE V
OFFICERS
Section 1. Officers; Election; Qualifications; Term of Office;
Resignation; Removal; Vacancies..................................6
Section 2. Powers and Duties of Officers....................................6
ARTICLE VI
INDEMNIFICATION
Section 1. Obligations to Indemnify.........................................6
Section 2. Construction and Presumption Favoring Indemnification............7
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Section 3. Right of Claimant to Bring Suit..................................7
Section 4. Defense to Enforcement...........................................8
Section 5. Indemnification by Others........................................8
Section 6. Fiduciary Duty...................................................8
Section 7. Confidentiality..................................................8
Section 8. Contract Right...................................................9
Section 9. Indemnity of Others..............................................9
Section 10. Non-Exclusivity..................................................9
Section 11. Severability.....................................................9
Section 12. Insurance........................................................9
ARTICLE VII
GENERAL
Section 1. Banking Arrangements.............................................9
Section 2. Facsimile Signatures............................................10
Section 3. Execution of Instruments........................................10
Section 4. Financial Year..................................................10
Section 5. Corporate Seal..................................................10
Section 6. Control over By-Laws............................................10
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BY-LAWS
OF
ELAN FINANCE CORP.
(hereinafter referred to as the "Corporation")
ARTICLE I
INTERPRETATION
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In these By-Laws and all other by-laws of the Corporation words importing
the singular number only shall include the plural and vice versa; words
importing the masculine gender shall include the feminine and neuter genders;
words importing a person shall include an individual, partnership, association,
corporation, executor, administrator or legal representative and any number or
aggregate of persons; "certificate" shall include the original certificate of
incorporation, as the same may have been or may be amended and/or restated from
time to time; "Board" shall mean the Board of Directors of the Corporation;
"GCL" shall mean the General Corporation Law of the State of Delaware or any
statute that may be substituted therefor, in either case as from time to time
amended; and "meeting of stockholders" shall mean and include an annual meeting
of stockholders and a special meeting of stockholders.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place and Time.
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Subject to the laws governing the Corporation, meetings of stockholders of
the Corporation shall be held at such place either within or without the State
of Delaware and at such time as the Board or the Chairman of the Board or, if
authorized by the Board, any other officer of the Corporation may determine from
time to time.
Section 2. Annual Meeting.
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The annual meeting of stockholders of the Corporation for the election of
directors and to act on such other matters as may properly be brought before the
meeting shall be held on such date and at such time as may be fixed by
resolution of the Board of Directors, except as may otherwise be provided by
law. If no annual meeting is held in accordance with the foregoing provision, a
special meeting may be held in lieu of the annual meeting, and any action taken
at that special meeting shall have the same effect as if it had been taken at
the annual meeting, and in such case all references in these By-Laws to the
annual meeting of the stockholders shall be deemed to refer to such special
meeting.
Section 3. Special Meetings.
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Special Meetings of stockholders for any purpose or purposes may be called
at any time by the President, the Board, the Chairman of the Board or
stockholders owning a majority of the capital stock of the Corporation issued
and outstanding and entitled to vote, but such special meetings may not be
called by any other person or persons. Only items of business that are set forth
in a notice of special meeting may be transacted at such special meeting.
Section 4. Chairman.
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Subject to the provisions of any resolution of the Board, the Chairman of
the Board, if any, or in his absence or inability or refusal or failure to act,
the President or, in his absence or inability or refusal or failure to act, a
Vice President, or, if there be more than one Vice President present and willing
to act, that one of them who may have been designated for the purpose by the
Chairman of the Board or by the President or by resolution of the Board shall
preside at all meetings of the stockholders. Each of the foregoing officers may
attend each such meeting provided that no Vice President shall act as Chairman
if the Board shall have determined that he shall not so act. If all of the
foregoing officers be absent or unable or refuse or fail to act, the
stockholders present or represented and entitled to vote at said meeting may
choose a Chairman.
Section 5. Quorum.
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Except as otherwise required by law or the certificate of incorporation,
the holders of shares representing not less than a majority of the total voting
power of the shares entitled to be voted at any meeting of the stockholders,
present in person or by proxy, shall constitute a quorum. The Chairman of the
meeting may adjourn the meeting to another place, date or time if a quorum shall
fail to attend any meeting or for any other reason.
Section 6. Voting; Proxies.
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Except as otherwise provided by law or by the certificate of incorporation,
each stockholder entitled to vote at any meeting of stockholders shall be
entitled to one vote for each share of stock held by him which has voting power
upon the matter in question. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by proxy. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument revoking the proxy or
another proxy bearing a later date with the Secretary of the Corporation. Voting
at meetings of stockholders need not be by written ballot unless the holders of
a majority of the outstanding shares of all classes and series of stock entitled
to vote thereon present in person or by proxy at such meeting shall so
determine.
Section 7. Action Without Meeting.
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Any action required to be taken at a meeting of stockholders may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed 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. Prompt notice of the taking of corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
MEETINGS OF DIRECTORS
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Section 1. General Powers.
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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, the Certificate of
Incorporation or these By-Laws. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
Section 2. Number; Qualifications.
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Subject to the provisions of the certificate, the Board shall consist of a
minimum of one and a maximum of twenty-four members, the number thereof to be
determined from time to time by resolution of the Board. Directors need not be
stockholders. Each director shall hold office until the next annual meeting and
until his successor is elected and qualified, or until his earlier death,
resignation or removal.
Section 3. Vacancies.
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Any vacancy in the Board of Directors, however occurring, including a
vacancy resulting from an enlargement of the Board, may be filled by vote of a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director; provided that if the vacancy results from the death,
resignation or removal of a director which, pursuant to the Certificate of
Incorporation, the holders of a class of capital stock then outstanding are
entitled to elect, such vacancy may only be filled by the holders of such class
of capital stock. A director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office, and a director chosen to fill a
position resulting from an increase in the number of directors shall hold office
until the next annual meeting of stockholders and until his successor is elected
and qualified, or until his earlier death, resignation or removal.
Section 4. Resignation.
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Any director may resign by delivering his written resignation to the
Corporation at its principal office or to the President 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.
Section 5. Place, Time and Notice.
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Immediately after any meeting of stockholders, a meeting of such Directors
as are then present may be held, provided that they shall constitute a quorum,
without notice, for the election and/or appointment of officers of the
Corporation and the transaction of such other business as may come before the
meeting.
Subject to the provisions of any resolution of the Board, meetings of the
Board may be convened and held at any place within or without the State of
Delaware at any time by order of the Chairman of the Board, the President or any
Vice President who is a Director or any two Directors and notice of the time and
place for holding each such meeting shall be served upon each of the Directors
or left at his usual residence or usual place of business, or shall be mailed,
postage prepaid, or sent by means of telegraphic, facsimile or other
communications facility addressed to each of the Directors at his latest address
as shown in the records of the Corporation at least forty-eight hours prior to
the time fixed for such meeting. Notice of any meeting or any irregularity in
any meeting or the notice thereof may be waived by any Director either before or
after the meeting is held.
Section 6. Telephonic Meetings Permitted.
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Members of the Board, or any committee designated by the Board, may
participate in a meeting of such Board or 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
pursuant to this by-law shall constitute presence in person at such meeting.
Section 7. Quorum.
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Unless a different number is required by these By-Laws, the certificate of
incorporation or the GCL, one-third of the total number of Directors then in
office shall constitute a quorum. Except as otherwise provided in the
certificate of incorporation or these By-Laws, the vote of a majority of the
Directors present at a meeting at which a quorum is present shall be the act of
the Board.
Section 8. Chairman.
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Subject to the provisions of any resolution of the Board, the Chairman of
the Board, if any, or, in his absence or inability or refusal or failure to act,
the President shall preside at all meetings of the Board, provided that the
President shall not so act unless he is a Director. If the Chairman of the Board
and the President are absent or unable or refuse or fail to act, the Directors
present may choose a Chairman from among their number.
Section 9. Interest of Directors and Officers Generally in Contracts.
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No Director or officer shall be disqualified by his office from contracting
with the Corporation nor shall any contract or arrangement entered into by or on
behalf of the Corporation with any Director or officer or in which any Director
or officer is in any way interested be liable to be voided nor shall any
Director or officer so contracting or being so interested be liable to account
to the Corporation for any profit realized by any such contract or arrangement
by reason of such Director or officer holding that office or of the fiduciary
relationship thereby established; provided that the Director or officer shall
have complied with the provisions of the GCL.
Section 10. Action in Writing by Directors.
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Unless otherwise restricted by the certificate of incorporation, these
By-Laws or the GCL, any action required or permitted to be taken at any meeting
of the Board, or any committee thereof, may be taken without a meeting if all
members of the Board or such 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 such committee.
Section 11. Compensation of Directors.
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Directors may be paid such compensation for their services and such
reimbursement for expenses of attendance at meetings as the Board of Directors
may from time to time determine. No such payment shall preclude any director
from serving the Corporation or any of its parent or subsidiary corporations in
any other capacity and receiving compensation for such service.
ARTICLE IV
COMMITTEES
Section 1. Committees.
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The Board 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. In the absence or
disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board to
act at the meeting in place of any such absent or disqualified member.
Section 2. Committee Rules.
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Unless the Board otherwise provides, each committee designated by the Board
may make, alter and repeal rules for the conduct of its business. In the absence
of such rules each committee shall conduct its business in the same manner as
the Board conducts its business pursuant to Article III of these By-Laws.
ARTICLE V
OFFICERS
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Section 1. Officers; Election; Qualifications; Term of Office;
Resignation; Removal; Vacancies.
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The Board shall choose a President and Secretary, and it may, if it so
determines, choose a Chairman of the Board and a Vice Chairman of the Board. The
Board may also choose one or more Senior Vice Presidents, one or more Vice
Presidents, one or more Assistant Secretaries, a Treasurer and one or more
Assistant Treasurers and such
other officers as it deems appropriate. Each such officer shall hold office
until the first meeting of the Board after the first meeting of stockholders
next succeeding his election, and until his successor is elected and qualified
or until his earlier resignation or removal. Any officer may resign at any time
upon written notice to the Corporation. The Board may remove any officer with or
without cause at any time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the Corporation. Any number of
offices may be held by the same person. Any vacancy occurring in any office of
the Corporation by death, resignation, removal or otherwise may be filled for
the unexpired portion of the term by the Board at any regular or special
meeting.
Section 2. Powers and Duties of Officers.
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The officers of the Corporation shall have such powers and duties in the
management of the Corporation as may be prescribed by the Board and, to the
extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board. The Board may require any officer, agent or
employee to give security for the faithful performance of his duties.
ARTICLE VI
INDEMNIFICATION
The Corporation shall be obligated to indemnify in accordance with the
provisions of this Article VI:
Section 1. Obligations to Indemnify.
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To the fullest extent authorized by the GCL (but in the case of any
amendment to the GCL effective subsequent to the date of this By-law, if
permitted by law, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than the GCL permitted the Corporation
to provide prior to such amendment), the Corporation shall indemnify, hold
harmless and advance expenses to each person (and, where applicable, whether the
person died testate or intestate, the personal representative of such person,
the estate of such person and such person's legatees and heirs) who is or has
served as Director of or officer of:
(a) the Corporation; or
(b) any other enterprise at the request of the Corporation,
who was or is made a party or is threatened to be made a party to or is involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (herein referred to sometimes as "proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was a Director or officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent. Such indemnification and holding harmless shall
cover all recoverable expense, liability and loss (including, without
limitation, attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) incurred or suffered by such
person in connection therewith and such indemnification shall continue as to a
person who has ceased to be an officer, director, employee or agent and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as otherwise provided in this Article VI, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of the
Corporation. The right to indemnification conferred by this Article VI shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the GCL requires, the payment of such expenses incurred by a
Director or officer of the Corporation in his or her capacity as a Director or
officer of the Corporation (and not in any other capacity in which service was
rendered by such person while a Director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
dispo-
sition of a proceeding, shall be made only upon delivery to the Corporation of
an undertaking, by or on behalf of such Director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such Director or
officer is not entitled to be indemnified under this Section or otherwise.
Section 2. Construction and Presumption Favoring Indemnification.
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In connection with each claim for indemnification, this Article VI shall be
liberally construed in favor of indemnification and there shall be a rebuttable
presumption that the Corporation shall bear the burden of proving by a
preponderance of the evidence that the claimant is not so entitled to
indemnification.
Section 3. Right of Claimant to Bring Suit.
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If a claim under this Article VI is not paid in full by the Corporation
within thirty (30) days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall also be entitled to be paid for any and all expenses incurred in
processing such claim. Neither of the following shall be a defense to any such
action or create a presumption that the claimant has not met the applicable
standard of conduct:
(a) the failure of the Corporation (including its Board, independent
legal counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper; or
(b) an actual determination by the Corporation (including its Board,
independent legal counsel or its stockholders) that the claimant was not
entitled to indemnification.
Section 4. Defense to Enforcement.
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It shall be a defense to any such action that the claimant has not met the
standards of conduct which make it permissible for the Corporation to indemnify
the claimant for the amount claimed. The burden of proving such defense shall be
on the Corporation. The defense referred to in the first sentence of this
Section 4 shall not be available in any action brought to enforce a claim for
expense incurred in defending any proceeding in advance of its final disposition
where the required undertaking, if any, is required by the GCL, has been
tendered to the Corporation.
Section 5. Indemnification by Others.
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The Corporation's obligation, if any, to indemnify or advance expenses to
any person who was or is serving at its request as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise shall be reduced by any amount such person collects as
indemnification from such other corporation, partnership, joint venture, trust
or other enterprise.
Section 6. Fiduciary Duty.
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A Director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director,
except to the extent such exemption from liability or limitation thereof is not
permitted under the GCL. Any amendment, modification or repeal of the foregoing
sentence by the stockholders of the Corporation shall not adversely affect any
right or protection of a Director of the Corporation in respect of any act or
omission occurring prior to the time of such amendment, modification or repeal.
Section 7. Confidentiality.
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Any finding by the Board, independent legal counsel, or the stockholders,
that a person asserting a claim for indemnification pursuant to this Article VI
is not entitled to such indemnification, and any information which
may support such finding, shall be held by the Board, independent legal counsel
and the stockholders in confidence to the extent permitted by law and shall not
be disclosed to any third party. If the Corporation, the Board or the
stockholders are requested or required (by questions, interrogatories, subpoena,
civil investigative demand or other process) to disclose any such confidential
information, the person or entity so requested or required shall provide the
claimant with prompt notice of each such request and shall use its best efforts
to lawfully not disclose any such confidential information, including without
limitation, seeking a protective order at the Corporation's expense.
Section 8. Contract Right.
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The provisions of this Article VI shall be deemed to be a contract between
the Corporation and each Director and officer who serves in such capacity at any
time while this Article VI is in effect. Any repeal or modification of this
Article VI shall not impair or otherwise affect any rights or obligations then
existing with respect to any state of facts then or theretofore existing or any
action, suit or proceeding theretofore or thereafter brought based in whole or
in part upon such state of facts.
Section 9. Indemnity of Others.
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The Board in its discretion shall have the power on behalf of the
Corporation to enter into agreements to indemnify any person, other than a
Director or officer, made a party to any action, suit or proceeding by reason of
the fact that he or she or his or her testate or intestate personal
representatives, legatees or heirs is or was an employee, agent or otherwise
acting on behalf of the Corporation or serving at the request of the Corporation
or a predecessor, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise.
Section 10. Non-Exclusivity.
---------------
The rights of indemnification and advancement of expenses provided by this
Article VI shall not be deemed exclusive of any rights not provided by this
Article VI to which any Director or officer may otherwise be entitled.
Section 11. Severability.
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If for any reason a provision of this Article VI shall be deemed invalid or
unenforceable, the Corporation shall remain obligated to indemnify and advance
expenses pursuant to all those provisions of this Article VI which are valid and
enforceable.
Section 12. Insurance.
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The Corporation may maintain insurance, at its expense, to protect itself
and any Director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the GCL.
ARTICLE VII
GENERAL
Section 1. Banking Arrangements.
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The Corporation's bank accounts shall be kept in one or more banks, trust
companies or other firms or corporations carrying on banking business as the
Board, the President, a Vice President or the Treasurer or any person designated
for such purpose by the Board may from time to time determine.
Endorsements for deposit to the credit of the Corporation in any of its
duly authorized depositories shall be made in such manner as the Board from time
to time may determine.
All checks, drafts or other orders for the payment of money, and all notes
or other evidences of indebtedness issued in the name of the Corporation, shall
be signed by such officer or officers or agents of the Corporation, and in such
manner, as from time shall be determined by the Board.
Section 2. Facsimile Signatures.
--------------------
The Board may from time to time authorize the use of signatures which are
printed or mechanically reproduced in facsimile on checks drawn on any of the
Corporation's bank accounts and on any instrument that may be issued by the
Corporation as evidence of a share or other security in or obligation of the
Corporation.
Section 3. Execution of Instruments.
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Unless the Board shall otherwise direct generally or in specific instances,
the Chairman of the Board, the President, any Vice President, the Secretary or
the Treasurer may enter into any contract or execute and deliver any instrument
in the name and on behalf of the Corporation. The Board may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
and deliver any instrument in the name and on behalf of the Corporation, and
such authorization may be general or confined to specific instances.
The term "instruments in writing" as used herein shall, without limiting
the generality thereof, include contracts, documents, powers of attorney, deeds,
mortgages, guarantees, hypothecs, charges, conveyances, transfers and
assignments of property (real or personal, immovable or movable), agreements,
tenders, releases, receipts and discharges for the payment of money or other
obligations, conveyances, transfers and assignments of shares, stocks, bonds,
debentures, or other securities, instruments of proxy and all paper writings.
Section 4. Financial Year.
--------------
Until otherwise determined by the Board, the financial year of the
Corporation shall terminate on the 31st day of December in each year.
Section 5. Corporate Seal.
--------------
The corporate seal shall be in such form as the Board shall from time to
time adopt.
Section 6. Control over By-Laws.
--------------------
These By-Laws or any by-law may be adopted, amended or repealed only (i) by
the affirmative vote of not less than a majority of the Directors then in office
(provided, however, that such number shall not be less than one-third of the
total number of Directors then authorized) at any regular or special meeting, if
notice of the proposed amendment or alteration or new by-law is included in the
notice of such meeting or (ii) by the affirmative vote of the holders of shares
representing at least a majority of the total voting power of the shares
entitled to be voted at any meeting of stockholders, if notice of the proposed
amendment or alteration or new by-law is included in the notice of such meeting.
The stockholders may alter and repeal any by-laws, in accordance with this
Section 6, whether adopted by them or otherwise.