LPA ACQUISITION CORP.
Incorporated under the laws
of the State of Delaware
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BY-LAWS
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As adopted on May 7, 1998
BY-LAWS OF
LPA ACQUISITION CORP.
ARTICLE I
OFFICES
1.1 Registered Office.
The registered office of LPA Acquisition Corp. (the
"Corporation"), in the State of Delaware and the registered agent in
charge thereof shall be as set forth in the Certificate of Incorporation.
1.2 Other Offices.
The Corporation may also have an office or offices at
any other place or places within or outside the State of Delaware.
ARTICLE II
MEETING OF STOCKHOLDERS; STOCKHOLDERS'
CONSENT IN LIEU OF MEETING
2.1 Annual Meetings.
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 of the Corporation (the
"Board") 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 (the "Delaware Statute") to be taken at a stockholders'
annual meeting are taken by written consent in lieu of meeting pursuant
to Section 10 of this Article II.
2.2 Special Meetings.
A special meeting of the stockholders for any purpose
or purposes may be called by the Board, the Chairman, or the record
holders of at least 25% of the issued and outstanding shares of Common
Stock of the Corporation, to be held at such place, date and hour as
shall be designated in the notice or waiver of notice thereof.
2.3 Notice of Meetings.
Except as otherwise required by statute, the
Certificate of Incorporation of the Corporation (the "Certificate") or
these By-laws, notice of each annual or special meeting of the
stockholders shall be given to each stockholder of record entitled to
vote at such meeting not less than 10 nor more than 60 days before the
day on which the meeting is to be held, by delivering written notice
thereof to him personally, or by mailing a copy of such notice, postage
prepaid, directly to him at his address as it appears in the records of
the Corporation, or by transmitting such notice thereof to him at such
address by telegraph, cable or other telephonic transmission. Every such
notice shall state the place, the date and hour of the meeting, and, in
case of a special
meeting, the purpose or purposes for which the meeting is called. Notice of any
meeting of stockholders shall not be required to be given to any stockholder who
shall attend such meeting in person or by proxy, or who shall, in person or by
attorney thereunto authorized, waive such notice in writing, either before or
after such meeting. Except as otherwise provided in these By-laws, neither the
business to be transacted at, nor the purpose of, any meeting of the
stockholders need be specified in any such notice or waiver of notice. Notice of
any adjourned meeting of stockholders shall not be required to be given, except
when expressly required by law.
2.4 Quorum.
At each meeting of the stockholders, except where
otherwise provided by the Certificate or these By-laws, the holders of a
majority of the issued and outstanding shares of Common Stock of the
Corporation entitled to vote at such meeting, present in person or
represented by proxy, shall constitute a quorum for the transaction of
business. In the absence of a quorum, a majority in interest of the
stockholders present in person or represented by proxy and entitled to
vote, or, in the absence of all the stockholders entitled to vote, any
officer entitled to preside at, or act as secretary of, such meeting,
shall have the power to adjourn the meeting from time to time, until
stockholders holding the requisite amount of stock to constitute a quorum
shall be present or represented. At any such adjourned meeting at which a
quorum shall be present, any business may be transacted which might have
been transacted at the meeting as originally called.
2.5 Organization.
Unless otherwise determined by the Board, at each
meeting of the stockholders, one of the following shall act as chairman
of the meeting and preside thereat, in the following order of precedence:
(a) the Chairman;
(b) the President;
(c) any director, officer or stockholder of the Corporation designated
by the Board to act as chairman of such meeting and to preside thereat if the
Chairman or the President shall be absent from such meeting; or
(d) a stockholder of record who shall be chosen chairman of such
meeting by a majority in voting interest of the stockholders present in person
or by proxy and entitled to vote thereat.
(e) the Secretary or, if he shall be presiding over such meeting in
accordance with the provisions of this Section 5 or if he shall be absent from
such meeting, the person (who shall be an Assistant Secretary, if an Assistant
Secretary has been appointed and is present) whom the chairman of such meeting
shall appoint, shall act as secretary of such meeting and keep the minutes
thereof.
2.6 Order of Business.
The order of business at each meeting of the
stockholders shall be determined by the chairman of such meeting, but
such order of business may be changed by a majority in voting interest of
those present in person or by proxy at such meeting and entitled to vote
thereat.
2.7 Voting.
Except as otherwise provided by law, the Certificate or
these By-laws, at each meeting of the stockholders, every stockholder of
the Corporation shall be entitled to one vote in person or by proxy for
each share of Common Stock of the Corporation held by him and registered
in his name on the books of the Corporation on the date fixed pursuant to
Section 7 of Article VI as the record date for the determination of
stockholders entitled to vote at such meeting. Persons holding stock in a
fiduciary capacity shall be entitled to vote the shares so held. A person
whose stock is pledged shall be entitled to vote, unless, in the transfer
by the pledgor on the books of the Corporation, he has expressly
empowered the pledgee to vote thereon, in which case only the pledgee or
his proxy may represent such stock and vote thereon. If shares or other
securities having voting power stand in the record of two or more
persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety or otherwise, or if two or
more persons have the same fiduciary relationship respecting the same
shares, unless the Secretary shall be given written notice to the
contrary and furnished with a copy of the instrument or order appointing
them or creating the relationship wherein it is so provided, their acts
with respect to voting shall have the following effect:
(a) if only one votes, his act binds all;
(b) if more than one votes, the act of the majority so voting binds
all; and
(c) if more than one votes, but the vote is evenly split on any
particular matter, such shares shall be voted in the manner provided by law.
If the instrument so filed shows that any such tenancy is held
in unequal interests, a majority or even-split for the purposes of this Section
7 shall be a majority or even-split in interest. The Corporation shall not vote
directly or indirectly any share of its own capital stock. Any vote of stock may
be given by the stockholder entitled thereto in person or by his proxy appointed
by an instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized, delivered to the secretary of the meeting; provided,
however, that no proxy shall be voted after three years from its date, unless
said proxy provides for a longer period. At all meetings of the stockholders,
all matters (except where other provision is made by law, the Certificate or
these By-laws) shall be decided by the vote of a majority in interest of the
stockholders present in person or by proxy at such meeting and entitled to vote
thereon, a quorum being present. Unless demanded by a stockholder present in
person or by proxy at any meeting and entitled to vote thereon, the vote on any
question need not be by ballot. Upon a demand by any such stockholder for a vote
by ballot upon any question, such vote by ballot shall be taken. On a vote by
ballot, each ballot shall be signed by the stockholder voting, or by his proxy,
if there be such proxy, and shall state the number of shares voted.
2.8 Inspection.
The chairman of the meeting may at any time appoint one
or more inspectors to serve at any meeting of the stockholders. Any
inspector may be removed, and a new inspector or inspectors appointed, by
the Board at any time. Such inspectors shall decide upon the
qualifications of voters, accept and count votes, declare the results of
such vote, and subscribe and deliver to the secretary of the meeting a
certificate stating the number of shares of stock issued and outstanding
and entitled to vote thereon and the number of shares voted for and
against the question, respectively. The inspectors need not be
stockholders of the Corporation, and any director or officer of the
Corporation may be an inspector on any question other than a vote for or
against his election to any position with the Corporation or on any other
matter in which he may be directly interested. Before acting as herein
provided, each inspector shall subscribe an oath faithfully to execute
the duties of an inspector with strict impartiality and according to the
best of his ability.
2.9 List of Stockholders.
It shall be the duty of the Secretary or other officer
of the Corporation who shall have charge of its stock ledger to prepare
and make, at least 10 days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose
germane to any such meeting, during ordinary business hours, for a period
of at least 10 days prior to such meeting, either at a place within the
city where such meeting is to be held, which place shall be specified in
the notice of the meeting or, if not so specified, at the place where the
meeting is to be held. Such 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.
2.10 Stockholders' Consent in Lieu of Meeting.
Any action required by the Delaware Statute 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, by a consent in writing, as permitted by the Delaware
Statute.
ARTICLE III
BOARD OF DIRECTORS
3.1 General Powers.
The business, property and affairs of the Corporation
shall be managed by or under the direction of the Board, 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 directed or required
to be exercised or done by the stockholders.
3.2 Number and Term of Office.
The number of directors shall be fixed from time to
time by the Board. 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.
3.3 Election of Directors.
At each meeting of the stockholders for the election of
directors at which a quorum is present, the persons receiving the
greatest number of votes, up to the number of directors to be elected, of
the stockholders present in person or by proxy and entitled to vote
thereon shall be the directors; provided, however, that for purposes of
such vote no stockholder shall be allowed to cumulate his votes. Unless
an election by ballot shall be demanded as provided in Section 7 of
Article II, election of directors may be conducted in any manner approved
at such meeting.
3.4 Resignation, Removal and Vacancies.
Any director may resign at any time by giving written
notice to the Board, the Chairman, the President or the Secretary. Such
resignation shall take effect at the time specified therein or, if the
time be not specified, upon receipt thereof; unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to
make it effective.
Any director or the entire Board may be removed, with
or without cause, at any time by vote of 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 10 of Article II.
Vacancies occurring on the Board for any reason may be
filled by vote of the stockholders or by the stockholders' written
consent pursuant to Section 10 of Article II, or by vote of the Board or
by the directors' written consent pursuant to Section 6 of this Article
III. If the number of directors then in office is less than a quorum,
such vacancies may be filled by a vote of a majority of the directors
then in office.
3.5 Meetings.
(a) Annual Meetings. As soon as practicable after each annual election
of directors, the Board 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 6 of this Article III.
(b) Other Meetings. Other meetings of the Board shall be held at such
times and places as the Board, the Chairman, the President or any director shall
from time to time determine.
(c) Notice of Meetings. Notice shall be given 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 date 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 may hold its meetings at such place or
places within or outside the State of Delaware as the Board 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. A majority of the total number of
directors then in office shall be present in person at any meeting of the Board
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, 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, one of the following
shall act as chairman of the meeting and preside thereat, in the following order
of precedence:
(i) the Chairman;
(ii) the President (if a director); or
(iii) any director designated by a majority of the directors
present.
(iv) The Secretary or, in the case of his absence, an
Assistant Secretary, if an Assistant Secretary has been appointed and is
present, or any person whom the chairman of the meeting shall appoint
shall act as secretary of such meeting and keep the minutes thereof.
3.6 Directors' Consent in Lieu of Meeting.
Any action required or permitted to be taken at any
meeting of the Board 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 directors then in office and such
consent is filed with the minutes of the proceedings of the Board.
3.7 Action by Means of Conference Telephone or Similar Communications Equipment.
Any one or more members of the Board may participate in
a meeting of the Board by means of conference telephone or similar
communications equipment by 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.
3.8 Committees.
The Board may, by resolution or resolutions passed by a
majority of the whole Board, designate one or more committees, each such
committee to consist of one or more directors of the Corporation, which
to the extent provided in said resolution or resolutions shall have and
may exercise the powers 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 which may require it, such
committee or committees to have such name or names as may be determined
from time to time by resolution adopted by the Board. A majority of all
the members of any such committee may determine its action and fix the
time and place of its meetings, unless the Board shall otherwise provide.
The Board shall have power to change the members of any such committee at
any time, to fill vacancies and to discharge any such committee, either
with or without cause, at any time.
ARTICLE IV
OFFICERS
4.1 Executive Officers.
The principal officers of the Corporation shall be a
Chairman, if one is appointed (and any references to the Chairman shall
not apply if a Chairman has not been appointed), a President, a
Secretary, and a Treasurer, and may include such other officers as the
Board may appoint pursuant to Section 3 of this Article IV. Any two or
more offices may be held by the same person.
4.2 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 so provided, by the Board.
4.3 Other Officers.
The Corporation may have such other officers, agents
and employees as the Board may deem necessary, including one or more
Assistant Secretaries, one or more Assistant Treasurers and one or more
Vice Presidents, each of whom shall hold office for such period, have
such authority, and perform such duties as the Board, the Chairman, or
the President may from time to time determine. The Board may delegate to
any principal officer the power to appoint and define the authority and
duties of, or remove, any such officers, agents, or employees.
4.4 Term of Office, Resignation and Removal.
All officers shall be elected or appointed by the Board
and shall hold office for such term as may be prescribed by the Board.
Each officer shall hold office until his successor has been elected or
appointed and qualified or until his earlier death or resignation or
removal in the manner hereinafter provided. The Board 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 Board, the Chairman, the President or the Secretary. Such
resignation shall take effect at the time specified therein or, if the
time be not specified, at the time it is accepted by action of the Board.
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 shall be subject to removal at any time by the Board or by the
stockholders of the Corporation with or without cause.
4.5 Vacancies.
If the office of Chairman, President, Secretary or
Treasurer becomes vacant for any reason, the Board shall fill such
vacancy, and if any other office becomes vacant, the Board may fill such
vacancy. Any officer so appointed or elected by the Board shall serve
only until such time as the unexpired term of his predecessor shall have
expired, unless reelected or reappointed by the Board.
4.6 The Chairman.
The Chairman shall give counsel and advice to the Board
and the officers of the Corporation on all subjects concerning the
welfare of the Corporation and the conduct of its business and shall
perform such other duties as the Board may from time to time determine.
Unless otherwise determined by the Board, he shall preside at meetings of
the Board and of the Stockholders at which he is present.
4.7 The President.
The President shall be the chief executive officer of
the Corporation. The President shall have general and active management
and control of the business and affairs of the Corporation subject to the
control of the Board and shall see that all orders and resolutions of the
Board are carried into effect. The President shall from time to time make
such reports of the affairs of the Corporation as the Board of Directors
may require and shall perform such other duties as the Board may from
time to time determine.
4.8 The Secretary.
The Secretary shall, to the extent practicable, attend
all meetings of the Board 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. He may give, or cause to be given, notice of all
meetings of the stockholders and of the Board, and shall perform such
other duties as may be prescribed by the Board, the Chairman or the
President, under whose supervision he shall act. 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, if
appointed, an Assistant Secretary or an Assistant Treasurer. He shall
keep in safe custody the certificate books and stockholder records and
such other books and records as the Board may direct, and shall perform
all other duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the Board, the
Chairman or the President.
4.9 The Treasurer.
The Treasurer shall have the care and custody of the
corporate funds and other valuable effects, including securities, shall
keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board. The Treasurer shall
disburse the funds of the Corporation as may be ordered by the Board,
taking proper vouchers for such disbursements, shall render to the
Chairman, President and directors, at the regular meetings of the Board,
or whenever they may require it, an account of all his transactions as
Treasurer and of the financial condition of the Corporation and shall
perform all other duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him by the Board,
the Chairman or the President.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1 Execution of Documents.
The Board shall designate, by either specific or
general resolution, the officers, employees and agents of the Corporation
who shall have the 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;
unless so designated or expressly authorized by these By-laws, no
officer, employee or agent shall have any power or authority to bind the
Corporation by any contract or engagement, to pledge its credit or to
render it liable pecuniarily for any purpose or amount.
5.2 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 or Treasurer, or any other officer of the
Corporation to whom power in this respect shall have been given by the
Board, shall select.
5.3 Proxies with Respect to Stock or Other Securities of Other Corporations.
The Board 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 with respect to 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 powers
and rights.
ARTICLE VI
SHARES AND THEIR TRANSFER; FIXING RECORD DATE
6.1 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 be in such form as shall be
prescribed by the Board. Certificates shall be numbered and issued in
consecutive order and shall be signed by, or in the name of, the
Corporation by the Chairman, the President or any Vice President, and by
the Treasurer (or an Assistant Treasurer, if appointed) or the Secretary
(or an Assistant Secretary, if appointed). In case any officer or
officers who shall have signed any such certificate or certificates shall
cease to be such officer or officers of the Corporation, whether because
of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the
Corporation and be issued and delivered as though the person or persons
who signed such certificate had not ceased to be such officer or officers
of the Corporation.
6.2 Record.
A 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 cancellation, the date of cancellation. 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 regarding the Corporation.
6.3 Transfer and Registration of Stock.
The transfer of stock and certificates which represent
the stock of the Corporation shall be governed by Article 8 of Subtitle 1
of Title 6 of the Delaware Code (the Uniform Commercial Code), as amended
from time to time. 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.
6.4 Addresses of Stockholders.
Each stockholder shall designate to the Secretary 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.
6.5 Lost, Destroyed and Mutilated Certificates.
The holder of any shares of the Corporation shall
immediately notify the Corporation of any loss, destruction or mutilation
of the certificate therefor, and the Board may, in its discretion, cause
to be issued to him a new certificate or certificates for such shares,
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 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.
6.6 Regulations.
The Board 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.
6.7 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, the Board may fix a record date,
which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board, and which record date
shall be not more than 60 nor less than 10 days before the date of such
meeting. If no record date is fixed by the Board, 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. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board may fix a new record date
for the adjourned meeting.
In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is
adopted by the Board, and which date shall be not more than 10 days after
the date upon which the resolution fixing the record date is adopted by
the Board. If no record date has been fixed by the Board, the record date
for determining stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board is required
by the Delaware Statute, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in this
State, 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. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail,
return receipt requested. If no record date has been fixed by the Board
and prior action by the Board is required by the Delaware Statute, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on
the day on which the Board adopts the resolution taking such prior
action.
In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall
be not more than 60 days prior to such action. If no record date is
fixed, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
ARTICLE VII
SEAL
The Board may provide a corporate seal, which shall be
in the form of a circle and shall bear the full name of the Corporation,
the year of incorporation of the Corporation and the words and figures
"LPA Acquisition Corp. - Corporate Seal - 1998 Delaware."
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be the
calendar year unless otherwise determined by the Board.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
9.1 Indemnification.
As provided in the Charter, to the fullest extent
permitted by the Delaware Statute as the same exists or may hereafter be
amended, a director of this Corporation shall not be liable to the
Corporation or its stockholders for breach of fiduciary duty as a
director.
Without limitation of any right conferred by paragraph
(a) of this Section 1, each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director,
officer or employee of the Corporation or is or was serving at the
request of the Corporation as a director, officer or employee of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity while serving as a director,
officer or employee or in any other capacity while serving as a director,
officer or employee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware Statute, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than permitted prior thereto),
against all expense, liability and loss (including attorneys' fees,
judgments, fines,
excise taxes or amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith and such indemnification shall continue
as to an indemnitee who has ceased to be a director, officer or employee and
shall inure to the benefit of the indemnitee's heirs, testators, intestates,
executors and administrators; provided, however, 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, and with respect to a criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful;
provided further, however, that no indemnification shall be made 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 to the Corporation,
unless a court having jurisdiction shall determine that, despite such
adjudication, such person is fairly and reasonably entitled to indemnification;
provided further, however, that, except as provided in Section 1(c) of this
Article IX with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) initiated by such indemnitee was authorized by the Board of Directors
of the Corporation. The right to indemnification conferred in this Article IX
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware Statute requires, an advancement of expenses
incurred by an indemnitee in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section or otherwise.
If a claim under Section (b) of this Article IX is not
paid in full by the Corporation with 60 days after a written claim has
been received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be 20
days, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in
whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms
of any undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by
the indemnitee to enforce a right to indemnification hereunder (but not
in a suit brought by the indemnitee to enforce a right to an advancement
of expenses) it shall be a defense that, and (ii) in any suit by the
Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking the Corporation shall be entitled to recover such
expenses upon a final adjudication that, the indemnitee has not met the
applicable standard of conduct set forth in the Delaware Statute. Neither
the failure of the Corporation (including the Board, independent legal
counsel, or the stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the Delaware Statute, nor an actual
determination by the Corporation (including the Board, independent legal
counsel, or the stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case
of such a suit brought by the indemnitee, be a defense to such suit. In
any suit brought by the indemnitee to enforce a right to indemnification
or to an advancement of expenses hereunder, or by the Corporation to
recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled to
be indemnified, or to such advancement of expenses, under this Section or
otherwise shall be on the Corporation.
The rights to indemnification and to the advancement of
expenses conferred in this Article IX shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
the Charter, agreement, vote of stockholders or disinterested directors
or otherwise.
9.2 Insurance.
The Corporation may purchase and maintain insurance, at
its expense, to protect itself and any person who is or was a director,
officer, employee or agent of the Corporation or any person who is or was
serving at the request of the Corporation as a director, officer,
employer or agent of 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 Delaware Statute.
ARTICLE X
AMENDMENT
Any by-law (including these By-laws) may be adopted,
amended or repealed by the vote of the holders of a majority of the
shares then entitled to vote or by the stockholders' written consent
pursuant to Section 10 of Article II, or by the vote of the Board or by
the directors' written consent pursuant to Section 6 of Article III.
* * * * *