BY-LAWS
of
HFS CORE SYSTEMS, INC.
(A Delaware Corporation)
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ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as amended
from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Chairman" means the Chairman of the Board of Directors of the
Corporation.
1.7 "Corporation" means HFS Core Systems, Inc.
1.8 "Directors" means directors of the Corporation.
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1.9 "Entire Board" means all then authorized directors of the
Corporation.
1.10 "General Corporation Law" means the General Corporation Law of
the State of Delaware, as amended from time to time.
1.11 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.12 "President" means the President of the Corporation.
1.13 "Secretary" means the Secretary of the Corporation.
1.14 "Stockholders" means stockholders of the Corporation.
1.15 "Treasurer" means the Treasurer of the Corporation.
1.16 "Vice President" means a Vice President of the Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 Place of Meetings. Every meeting of Stockholders may be held at
such place, within or without the State of Delaware, as may be designated by
resolution of the Board from time to time. The Board may, in its sole
discretion, determine that the meeting of Stockholders shall not be held at any
place, but may instead be held solely by means of remote communication in
accordance with Delaware law.
2.2 Annual Meeting. If required by applicable law, a meeting of
Stockholders shall be held annually for the election of Directors at such date
and time as may be designated by resolution of the Board from time to time. Any
other business may be transacted at the annual meeting.
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2.3 Special Meetings. Unless otherwise prescribed by applicable law,
special meetings of Stockholders may be called at any time by the Board and may
not be called by any other person or persons. Business transacted at any special
meeting of Stockholders shall be limited to the purpose stated in the notice.
2.4 Fixing Record Date. For the purpose of (a) determining the
Stockholders entitled (i) to notice of or to vote at any meeting of Stockholders
or any adjournment thereof, (ii) unless otherwise provided in the Certificate of
Incorporation, to express consent to corporate action in writing without a
meeting or (iii) 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 (b) any other lawful action, the
Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date was adopted by the Board and which
record date, unless otherwise required by applicable law, shall not be (x) in
the case of clause (a)(i) above, more than 60 nor less than 10 days before the
date of such meeting, (y) in the case of clause (a)(ii) above, more than 10 days
after the date upon which the resolution fixing the record date was adopted by
the Board and (z) in the case of clause (a)(iii) or (b) above, more than 60 days
prior to such action. If no such record date is fixed:
2.4.1 the record date for determining Stockholders entitled to
notice of or to vote at a meeting of Stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held;
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2.4.2 the record date for determining Stockholders entitled to
express consent to corporate action in writing without a meeting (unless
otherwise provided in the Certificate of Incorporation), when no prior action by
the Board is required by applicable law, shall be the first day on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in accordance with applicable law; and when prior
action by the Board is required by applicable law, the record date for
determining Stockholders entitled to express consent to corporate action in
writing without a meeting shall be at the close of business on the date on which
the Board adopts the resolution taking such prior action; and
2.4.3 the record date for determining Stockholders for any
purpose other than those specified in Sections 2.4.1 and 2.4.2 shall be at the
close of business on the day on which the Board adopts the resolution relating
thereto. When a determination of Stockholders of record entitled to notice of or
to vote at any meeting of Stockholders has been made as provided in this Section
2.4, such determination shall apply to any adjournment thereof unless the Board
fixes a new record date for the adjourned meeting.
2.5 Notice of Meetings of Stockholders. Whenever under the provisions
of applicable law, the Certificate of Incorporation or these By-laws,
Stockholders are required or permitted to take any action at a meeting, notice
shall be given stating the place, if any, date and hour of the meeting, the
means of remote communication, if any, by which Stockholders and proxy holders
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.
Unless otherwise provided by
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applicable law, the Certificate of Incorporation or these By-laws, notice of any
meeting shall be given, not less than 10 nor more than 60 days before the date
of the meeting, to each Stockholder entitled to vote at such meeting. If mailed,
such notice shall be deemed to be given when deposited in the United States
mail, with postage prepaid, directed to the Stockholder at his or her address as
it appears on the records of the Corporation. An affidavit of the Secretary or
an Assistant Secretary or of the transfer agent of the Corporation that the
notice required by this Section 2.5 has been given shall, in the absence of
fraud, be prima facie evidence of the facts stated therein. Any meeting of
Stockholders, annual or special, may adjourn from time to time to reconvene at
the same or some other place. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken, and at
the adjourned meeting any business may be transacted that might have been
transacted at the meeting as originally called. If, however, the adjournment is
for more than 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.
2.6 Waivers of Notice. Whenever the giving of any notice to
Stockholders is required by applicable law, the Certificate of Incorporation or
these By-laws, a waiver thereof, given by the person entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance by a Stockholder at a meeting shall
constitute a waiver of notice of such meeting except when the Stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the
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ground that the meeting has not been lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Stockholders need be specified in any waiver of notice unless so required
by applicable law, the Certificate of Incorporation or these By-laws.
2.7 List of Stockholders. The Secretary shall prepare and make, at
least 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, the Stockholder's agent, or attorney, at the Stockholder's
expense, for any purpose germane to the meeting, for a period of at least 10
days prior to the meeting, during ordinary business hours at the principal place
of business of the Corporation, or on a reasonably accessible electronic network
as provided by applicable law. If the meeting is to be held at a place, the list
shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any Stockholder who is present. If
the meeting is held solely by means of remote communication, the list shall also
be open for examination as provided by applicable law. Upon the willful neglect
or refusal of the Directors to produce such a list at any meeting for the
election of Directors, they shall be ineligible for election to any office at
such meeting. Except as provided by applicable law, the stock ledger shall be
the only evidence as to who are the Stockholders entitled to examine the stock
ledger, the list of Stockholders or the books of the Corporation, or to vote in
person or by proxy at any meeting of Stockholders.
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2.8 Quorum of Stockholders; Adjournment. Except as otherwise provided
by applicable law, the Certificate of Incorporation or these By-laws, at each
meeting of Stockholders, the presence in person or by proxy of the holders of a
majority in voting power of all outstanding shares of stock entitled to vote at
the meeting of Stockholders, shall constitute a quorum for the transaction of
any business at such meeting. In the absence of a quorum, the holders of a
majority in voting power of the shares of stock present in person or represented
by proxy at any meeting of Stockholders, including an adjourned meeting, whether
or not a quorum is present, may adjourn such meeting to another time and place.
Shares of its own stock belonging to the Corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly, by the Corporation,
shall neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
2.9 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation, every Stockholder entitled to vote at any meeting of Stockholders
shall be entitled to one vote for each share of stock held by such Stockholder
which has voting power upon the matter in question. At any meeting of
Stockholders, all matters, except as otherwise provided by the Certificate of
Incorporation, these By-laws, the rules and regulations of any stock exchange
applicable to the Corporation, applicable law or pursuant to any rules or
regulations applicable to the Corporation or its securities, shall be decided by
the affirmative vote of a majority in voting power of shares of stock present in
person or represented by proxy and entitled to vote thereon. At all meetings of
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Stockholders for the election of Directors, a plurality of the votes cast shall
be sufficient to elect. Each Stockholder entitled to vote at a meeting of
Stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
Stockholder by proxy but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. A proxy
shall be irrevocable if it states that it is irrevocable and if, and only so
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A Stockholder may revoke any proxy that is not irrevocable by
attending the meeting and voting in person or by delivering to the Secretary a
revocation of the proxy or by delivering a new proxy bearing a later date.
2.10 Voting Procedures and Inspectors of Election at Meetings of
Stockholders. The Board, in advance of any meeting of Stockholders, may, and
shall if required by applicable law, appoint one or more inspectors, who may be
employees of the Corporation, to act at the meeting and make a written report
thereof. The Board 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 a meeting, the person presiding at the meeting may, and shall if required
by applicable law, 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 (a) ascertain the number of shares outstanding and the voting power of
each, (b) determine the shares represented at the meeting and the validity of
proxies and ballots, (c) count all votes and ballots, (d) determine and retain
for a reasonable period a record of
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the disposition of any challenges made to any determination by the inspectors,
and (e) 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 or entities to assist the inspectors in the performance of
their duties. Unless otherwise provided by the Board, the date and time of the
opening and the closing of the polls for each matter upon which the Stockholders
will vote at a meeting shall be determined by the person presiding at the
meeting and shall be announced at the meeting. No ballot, proxies or votes, or
any revocation thereof or change thereto, shall be accepted by the inspectors
after the closing of the polls unless the Court of Chancery of the State of
Delaware upon application by a Stockholder shall determine otherwise. In
determining the validity and counting of proxies and ballots cast at any meeting
of Stockholders, the inspectors may consider such information as is permitted by
applicable law. No person who is a candidate for office at an election may serve
as an inspector at such election.
2.11 Conduct of Meetings; Organization. The Board may adopt by
resolution such rules and regulations for the conduct of the meeting of
Stockholders as it shall deem appropriate. At each meeting of Stockholders, the
President, or in the absence of the President, the Chairman, or if there is no
Chairman or if there be one and the Chairman is absent, a Vice President, and in
case more than one Vice President shall be present, that Vice President
designated by the Board (or in the absence of any such designation, the most
senior Vice President, based on age, present), shall preside over the meeting.
Except to the extent inconsistent with such rules and regulations as adopted by
the Board, the person presiding over any meeting of Stockholders shall have the
right and authority to convene and to adjourn the meeting, to prescribe such
rules, regulations and
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procedures and to do all such acts as, in the judgment of such person, are
appropriate for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board or prescribed by the presiding officer
of the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to
Stockholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as the person presiding over the meeting shall
determine; (iv) restrictions on entry to the meeting after the time fixed for
the commencement thereof; and (v) limitations on the time allotted to questions
or comments by participants. The presiding officer at any meeting of
Stockholders, in addition to making any other determinations that may be
appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding officer should so determine,
such person shall so declare to the meeting and any such matter or business not
properly brought before the meeting shall not be transacted or considered.
Unless and to the extent determined by the Board or the person presiding over
the meeting, meetings of Stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure. The Secretary, or in his
or her absence, one of the Assistant Secretaries, shall act as secretary of the
meeting. In case none of the officers above designated to act as the person
presiding over the meeting or as secretary of the meeting, respectively, shall
be present, a person presiding over the meeting or a secretary of the meeting,
as the case may be, shall be designated by the Board, and in case the Board has
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not so acted, in the case of the designation of a person to act as secretary of
the meeting, designated by the person presiding over the meeting.
2.12 Order of Business. The order of business at all meetings of
Stockholders shall be as determined by the person presiding over the meeting.
2.13 Written Consent of Stockholders Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required by
the General Corporation Law to be taken at any annual or special meeting of
Stockholders, or any action which may be taken at any annual or special meeting
of Stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be 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 and shall be delivered (by hand or by certified or registered mail,
return receipt requested) to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of Stockholders are recorded. Every written consent shall bear the date
of signature of each Stockholder who signs the consent and no written consent
shall be effective to take the corporate action referred to therein unless,
within 60 days of the earliest dated consent delivered in the manner required by
this Section 2.13, written consents signed by a sufficient number of holders to
take action are delivered to the Corporation as aforesaid. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall, to the extent required by applicable law, be given to those
Stockholders who have not
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consented in writing, and who, if the action had been taken at a meeting, would
have been entitled to notice of the meeting if the record date for such meeting
had been the date that written consents signed by a sufficient number of holders
to take the action were delivered to the Corporation.
ARTICLE 3
DIRECTORS
3.1 General Powers. Except as otherwise provided in the Certificate of
Incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or these
By-laws or applicable law, as it may deem proper for the conduct of its meetings
and the management of the Corporation. In addition to the powers expressly
conferred by these By-laws, the Board may exercise all powers and perform all
acts that are not required, by these By-laws or the Certificate of Incorporation
or by statute, to be exercised and performed by the Stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist of
one or more 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 a successor is duly elected and qualified or until the
Director's earlier death, resignation, disqualification or removal.
3.3 Newly Created Directorships and Vacancies. Unless otherwise
provided by applicable law or the Certificate of Incorporation, any newly
created directorships resulting from an increase in the authorized number of
Directors and
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vacancies occurring in the Board for any cause, may be filled by the affirmative
votes of a majority of the remaining members of the Board, although less than a
quorum, or by a sole remaining Director, or may be elected by a plurality of the
votes cast. A Director so elected shall be elected to hold office until the
expiration of the term of office of the Director whom he or she has replaced or
until a successor is elected and qualified, or until the Director's earlier
death, resignation, disqualification or removal.
3.4 Resignation. Any Director may resign at any time by notice given
in writing or by electronic transmission to the Corporation. Such resignation
shall take effect at the time therein specified, and, unless otherwise specified
in such resignation, the acceptance of such resignation shall not be necessary
to make it effective.
3.5 Removal. Subject to the provisions of Section 141(k) of the
General Corporation Law, any or all of the Directors may be removed with or
without cause by vote of the holders of a majority of the shares then entitled
to vote at an election of Directors.
3.6 Compensation. Each Director, in consideration of his or her
service as such, shall be entitled to receive from the Corporation such amount
per annum or such fees for attendance at Directors' meetings, or both, as the
Board may from time to time determine, together with reimbursement for the
reasonable out-of-pocket expenses, if any, incurred by such Director in
connection with the performance of his or her duties. Each Director who shall
serve as a member of any committee of Directors in consideration of serving as
such shall be entitled to such additional amount per annum or such fees for
attendance at committee meetings, or both, as the Board may from time to time
determine, together with reimbursement for the reasonable out-of-pocket
expenses,
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if any, incurred by such Director in the performance of his or her duties.
Nothing contained in this Section 3.6 shall preclude any Director from serving
the Corporation or its subsidiaries in any other capacity and receiving proper
compensation therefor.
3.7 Regular Meetings. Regular meetings of the Board may be held
without notice at such times and at such places within or without the State of
Delaware as may be determined from time to time by resolution of the Board.
3.8 Special Meetings. Special meetings of the Board may be held at
such times and at such places within or without the State of Delaware whenever
called by the Chairman, the President or the Secretary or by any two or more
Directors then serving as Directors on at least 24 hours' notice to each
Director given by one of the means specified in Section 3.11 hereof other than
by mail, or on at least three days' notice if given by mail. Special meetings
shall be called by the Chairman, President or Secretary in like manner and on
like notice on the written request of any two or more of the Directors then
serving as Directors.
3.9 Telephone Meetings. Directors or members of any committee
designated by the Board may participate in a meeting of the Board or of 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 pursuant to this Section 3.9 shall constitute
presence in person at such meeting.
3.10 Adjourned Meetings. A majority of the Directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. At least 24 hours'
notice of any adjourned meeting of the Board shall be given to each Director
whether or not
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present at the time of the adjournment, if such notice shall be given by one of
the means specified in Section 3.11 hereof other than by mail, or at least three
days' notice if by mail. Any business may be transacted at an adjourned meeting
that might have been transacted at the meeting as originally called.
3.11 Notice Procedure. Subject to Sections 3.8 and 3.12 hereof,
whenever, under applicable law, the Certificate of Incorporation or these
By-laws, notice is required to be given to any Director, such notice shall be
deemed given effectively if given in person or by telephone, by mail addressed
to such Director at such Director's address as it appears on the records of the
Corporation, with postage thereon prepaid, or by telegram, telecopy or, if
consented to by the Director to whom notice is given, by other means of
electronic transmission.
3.12 Waiver of Notice. Whenever the giving of any notice to Directors
is required by applicable law, the Certificate of Incorporation or these
By-laws, a waiver thereof, given by the Director entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance by a Director at a meeting shall
constitute a waiver of notice of such meeting except when the Director attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the ground that the meeting has not been
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Directors or a committee of
Directors need be specified in any waiver of notice unless so required by
applicable law, the Certificate of Incorporation or these By-laws.
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3.13 Organization. At each meeting of the Board, the Chairman, or in
the absence of the Chairman, the President, or in the absence of the President,
a chairman chosen by a majority of the Directors present, shall preside. The
Secretary shall act as secretary at each meeting of the Board. In case the
Secretary shall be absent from any meeting of the Board, an Assistant Secretary
shall perform the duties of secretary at such meeting; and in the absence from
any such meeting of the Secretary and all Assistant Secretaries, the person
presiding at the meeting may appoint any person to act as secretary of the
meeting.
3.14 Quorum of Directors. The presence in person of a majority of the
Entire Board shall be necessary and sufficient to constitute a quorum for the
transaction of business at any meeting of the Board.
3.15 Action by Majority Vote. Except as otherwise expressly required
by applicable law, 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.
3.16 Action Without Meeting. 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 or of any committee thereof may be taken
without a meeting if all Directors or members of such committee, as the case may
be, consent thereto in writing or by electronic transmission, and the writing or
writings or electronic transmission or transmissions are filed with the minutes
of proceedings of the Board 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.
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ARTICLE 4
COMMITTEES OF THE BOARD
The Board may, by resolution, 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 such
committee. If a member of a committee shall be absent from any meeting, or
disqualified from voting thereat, the remaining member or members present at the
meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may, by a unanimous vote, appoint another member of the
Board to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent permitted by applicable law and to the
extent provided in the resolution of the Board designating such committee, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers that may require it. Unless
otherwise specified in the resolution of the Board designating a committee, at
all meetings of such committee, a majority of the then authorized members of the
committee shall constitute a quorum for the transaction of business, and the
vote of a majority of the members of the committee present at any meeting at
which there is a quorum shall be the act of the committee. Each committee shall
keep regular minutes of its meetings. 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
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conduct its business in the same manner as the Board conducts its business
pursuant to Article 3 of these By-laws.
ARTICLE 5
OFFICERS
5.1 Positions. The officers of the Corporation shall be a President, a
Secretary, and such other officers as the Board may elect, including a Chairman,
a Treasurer, one or more Vice Presidents and one or more Assistant Secretaries
and Assistant Treasurers, who shall exercise such powers and perform such duties
as shall be determined from time to time by resolution of the Board. The Board
may elect one or more Vice Presidents as Executive Vice Presidents and may use
descriptive words or phrases to designate the standing, seniority or areas of
special competence of the Vice Presidents elected or appointed by it. Any number
of offices may be held by the same person unless the Certificate of
Incorporation or these By-laws otherwise provide.
5.2 Compensation. The compensation of all officers of the Corporation
shall be fixed by the Board or by any officer authorized by the Board to fix
such compensation. No officer shall be prevented from receiving a salary or
other compensation by reason of the fact that the officer is also a Director.
5.3 Election. The officers of the Corporation shall be elected by the
Board at its annual meeting or at such other time or times as the Board shall
determine.
5.4 Term of Office. Each officer of the Corporation shall hold office
for the term for which he or she is elected and until such officer's successor
is elected and qualifies or until such officer's earlier death, resignation or
removal. Any officer may
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resign at any time upon written notice to the Corporation. Such resignation
shall take effect at the date of receipt of such notice or at such later time as
is therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective. The resignation of an
officer shall be without prejudice to the contract rights of the Corporation, if
any. Any officer may be removed at any time, with or without cause by the Board.
Any vacancy occurring in any office of the Corporation may be filled by the
Board. The removal of an officer with or without cause shall be without
prejudice to the officer's contract rights, if any. The election or appointment
of an officer shall not of itself create contract rights.
5.5 Fidelity Bonds. The Corporation may secure the fidelity of any or
all of its officers or agents by bond or otherwise.
5.6 Chairman. The Chairman, if one shall have been appointed, shall
preside at all meetings of the Board and shall exercise such powers and perform
such other duties as shall be determined from time to time by resolution of the
Board.
5.7 President. The President shall be the Chief Executive Officer of
the Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of the Board. The President shall preside at all meetings
of the Stockholders and at all meetings of the Board at which the Chairman (if
there be one) is not present. The President may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts and other instruments, except
in cases in which the signing and execution thereof shall be expressly delegated
by resolution of the Board or by these By-laws to some other officer or agent of
the Corporation, or shall be required by applicable law otherwise to be signed
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or executed and, in general, the President shall perform all duties incident to
the office of President of a corporation and such other duties as may from time
to time be assigned to the President by resolution of the Board.
5.8 Vice Presidents. At the request of the President, or, in the
President's absence, at the request of the Board, the Vice Presidents shall (in
such order as may be designated by the Board, or, in the absence of any such
designation, in order of seniority based on age) perform all of the duties of
the President and, in so performing, shall have all the powers of, and be
subject to all restrictions upon, the President. Any Vice President may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments, except in cases in which the signing and execution thereof
shall be expressly delegated by resolution of the Board or by these By-laws to
some other officer or agent of the Corporation, or shall be required by
applicable law otherwise to be signed or executed, and each Vice President shall
perform such other duties as from time to time may be assigned to such Vice
President by resolution of the Board or by the President.
5.9 Secretary. The Secretary shall attend all meetings of the Board
and of the Stockholders and shall record all the proceedings of the meetings of
the Board and of the Stockholders in a book to be kept for that purpose, and
shall perform like duties for committees of the Board, when required. The
Secretary shall give, or cause to be given, notice of all special meetings of
the Board and of the Stockholders and shall perform such other duties as may be
prescribed by the Board or by the President, 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
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affix the same on any instrument requiring it, and when so affixed, the seal may
be attested by the signature of the Secretary or by the signature of such
Assistant Secretary. The Board may, by resolution, give general authority to any
other officer to affix the seal of the Corporation and to attest the same by
such officer's signature. The Secretary or an Assistant Secretary may also
attest all instruments signed by the President or any Vice President. The
Secretary shall have charge of all the books, records and papers of the
Corporation relating to its organization and management, shall see that the
reports, statements and other documents required by applicable law are properly
kept and filed and, in general, shall perform all duties incident to the office
of Secretary of a corporation and such other duties as may from time to time be
assigned to the Secretary by resolution of the Board or by the President.
5.10 Treasurer. The Treasurer, if one shall have been appointed, shall
have charge and custody of, and be responsible for, all funds, securities and
notes of the Corporation; receive and give receipts for moneys due and payable
to the Corporation from any sources whatsoever; deposit all such moneys and
valuable effects in the name and to the credit of the Corporation in such
depositaries as may be designated by the Board; against proper vouchers, cause
such funds to be disbursed by checks or drafts on the authorized depositaries of
the Corporation signed in such manner as shall be determined by the Board and be
responsible for the accuracy of the amounts of all moneys so disbursed;
regularly enter or cause to be entered in books or other records maintained for
the purpose full and adequate account of all moneys received or paid for the
account of the Corporation; have the right to require from time to time reports
or statements giving such information as the Treasurer may desire with respect
to any and
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all financial transactions of the Corporation from the officers or agents
transacting the same; render to the President or the Board, whenever the
President or the Board shall require the Treasurer so to do, an account of the
financial condition of the Corporation and of all financial transactions of the
Corporation; disburse the funds of the Corporation as ordered by the Board; and,
in general, perform all duties incident to the office of Treasurer of a
corporation and such other duties as may from time to time be assigned to the
Treasurer by resolution of the Board or by the President.
5.11 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers, if either shall have been appointed, shall
perform such duties as shall be assigned to them by the Secretary or by the
Treasurer, respectively, or by resolution of the Board or by the President.
ARTICLE 6
INDEMNIFICATION
6.1 Right to Indemnification. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person (a "Covered Person") who was or
is made or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or she, or a
person for whom he or she is the legal representative, is or was a director or
officer of the Corporation or, while a director or officer of the Corporation,
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, enterprise or nonprofit
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entity (an "Other Entity"), including service with respect to employee benefit
plans, against all liability and loss suffered and expenses (including
attorneys' fees) reasonably incurred by such Covered Person. Notwithstanding the
preceding sentence, except as otherwise provided in Section 6.3, the Corporation
shall be required to indemnify a Covered Person in connection with a Proceeding
(or part thereof) commenced by such Covered Person only if the commencement of
such Proceeding (or part thereof) by the Covered Person was authorized by the
Board.
6.2 Prepayment of Expenses. The Corporation shall pay the expenses
(including attorneys' fees) incurred by a Covered Person in defending any
Proceeding in advance of its final disposition, provided, however, that, to the
extent required by applicable law, such payment of expenses in advance of the
final disposition of the Proceeding shall be made only upon receipt of an
undertaking by the Covered Person to repay all amounts advanced if it should be
ultimately determined that the Covered Person is not entitled to be indemnified
under this Article 6 or otherwise.
6.3 Claims. If a claim for indemnification or advancement of expenses
under this Article 6 is not paid in full within 30 days after a written claim
therefor by the Covered Person has been received by the Corporation, the Covered
Person may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the burden
of proving that the Covered Person is not entitled to the requested
indemnification or advancement of expenses under applicable law.
6.4 Nonexclusivity of Rights. The rights conferred on any Covered
Person by this Article 6 shall not be exclusive of any other rights that such
Covered
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Person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, these By-laws, agreement, vote of stockholders or
disinterested directors or otherwise.
6.5 Other Sources. The Corporation's obligation, if any, to indemnify
or to advance expenses to any Covered Person who was or is serving at its
request as a director, officer, employee or agent of an Other Entity shall be
reduced by any amount such Covered Person may collect as indemnification or
advancement of expenses from such Other Entity.
6.6 Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article 6 shall not adversely affect any right or protection
hereunder of any Covered Person in respect of any act or omission occurring
prior to the time of such repeal or modification.
6.7 Other Indemnification and Prepayment of Expenses. This Article 6
shall not limit the right of the Corporation, to the extent and in the manner
permitted by applicable law, to indemnify and to advance expenses to persons
other than Covered Persons when and as authorized by appropriate corporate
action.
ARTICLE 7
GENERAL PROVISIONS
7.1 Certificates Representing Shares. Every holder of stock shall be
entitled to have a certificate signed by or in the name of the Corporation by
the Chairman, if any, or the President or a Vice President and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer, certifying
the number of
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shares owned by such Stockholder in the Corporation. Any or all of the
signatures upon a certificate may be facsimiles. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon any certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, such certificate may be issued by
the Corporation with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
7.2 Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.3 Lost, Stolen or Destroyed Certificates. The Corporation may issue
a new certificate of stock in the place of any certificate theretofore issued by
it, alleged to have been lost, stolen or destroyed, and the Corporation may
require the owner of the lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
7.4 Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or by means of, or be in the form of, any
information storage device or method, provided that the records so kept can be
converted into clearly legible paper form within a reasonable time. The
Corporation shall so convert any records so kept upon the request of any person
entitled to inspect such records pursuant to applicable law.
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7.5 Seal. The corporate seal shall have the name of the Corporation
inscribed thereon and shall be in such form as may be approved from time to time
by the Board. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
7.6 Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board.
7.7 Amendments. These By-laws may be altered, amended or repealed and
new By-laws may be adopted by the Board, but the Stockholders may make
additional By-laws and may alter and repeal any By-laws whether adopted by them
or otherwise.
