BY-LAWS
OF
USI AMERICAN HOLDINGS, INC.
(a Delaware corporation)
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. (a) All annual meetings of the
Stockholders for the election of directors shall be held at such place as shall
be designated from time to time by the Board of Directors and stated in the
notice of the meeting. Special meetings of Stockholders for any other purpose
may be held at such time and place as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
(b) Annual meetings of Stockholders shall be held on such date and
at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which they shall elect by a
plurality vote a Board of Directors and transact such other business as may
properly be brought before the meeting.
(c) Written notice of the annual meeting stating the place, date,
and hour of the meeting shall be given to each Stockholder entitled to vote at
such meeting not less than ten days nor more than sixty days prior to the date
of the meeting. A written waiver of any such notice signed by the person
entitled thereto, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends
the meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened.
(d) The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every meeting of
Stockholders, a complete list of the Stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
Stockholder and the number of shares registered in the name of each Stockholder.
Such list shall be open to the examination of any Stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
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.
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. The stock ledger shall be the only evidence as to the Stockholders
entitled to examine the stock ledger, the list required by this section or the
books of the Corporation, or to vote in person or by proxy at any meeting of
Stockholders.
SECTION 2. Special Meetings. (a) Special meetings of the
Stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the certificate of incorporation of the Corporation, may be called
by the Board of Directors or by the Stockholders holding together at least a
majority of all shares of the Corporation entitled to vote at the meeting. Such
request shall state the purpose or purposes of the proposed meeting.
(b) Written notice of a special meeting stating the place, date, and
hour of the meeting and, in general terms, the purpose or purposes for which the
meeting is called, shall be given not less than ten days nor more than sixty
days prior to the date of the meeting, to each Stock holder entitled to vote at
such meeting. Special meetings may be held at such place as shall be designated
by the Board of Directors. Whenever the directors shall fail to fix such place,
the meeting shall be held at the principal executive offices of the Corporation.
(c) Business transacted at any special meeting of Stockholders,
other than procedural matters and matters
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relating to the conduct of the meeting, shall be limited to the purpose or
purposes stated in the notice.
SECTION 3. Quorums. (a) The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the Stock
holders for the transaction of business except as otherwise provided by the
Delaware General Corporation Law ("Delaware Law") or by the Certificate of
Incorporation. Unless these By-Laws otherwise require, when a meeting is
adjourned to another time or place, whether or not a quorum is present, 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. At the adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
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. When a quorum is once present it is not
broken by the subsequent withdrawal of any Stockholder.
(b) When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the ques
tion is one on which, by express provision of Delaware Law or of the Certificate
of Incorporation, a different vote is required, in which case such express
provision shall govern and control the decision of such question.
SECTION 4. Organization. Meetings of Stockholders shall be presided
over by the Chairman, if any, or if none or in the Chairman's absence, the
President, if any, or if none or in the President's absence, by a Chairman to be
chosen by the Stockholders entitled to vote who are present in person or by
proxy at the meeting. The Secretary of the Corporation, or in the Secretary's
absence an Assistant Secretary, shall act as Secretary of every meeting and keep
the minutes thereof, but if neither the Secretary nor an Assistant Secretary is
present, the presiding officer
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of the meeting shall appoint any person present to act as secretary of the
meeting. The order of business at all meetings of stockholders shall be as
determined by the Chairman of the meeting.
SECTION 5. Voting; Proxies; Required Vote. (a) At each meeting of
Stockholders, every Stockholder shall be entitled to vote in person or by proxy
appointed by an instrument in writing, subscribed by such Stockholder or by such
Stockholder's duly authorized attorney-in-fact (but no such proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period) and, unless Delaware Law or the Certificate of Incorporation
provides otherwise, shall have one vote for each share of stock entitled to vote
registered in the name of such Stockholder on the books of the Corporation on
the applicable record date fixed pursuant to these By-Laws. At all elections of
directors the voting may but need not be by ballot and a plurality of the votes
cast there shall elect directors. Except as otherwise required by law or the
Certificate of Incorporation, any other action shall be authorized by a majority
of the votes cast.
(b) Where a separate vote by a class or classes, a majority of the
outstanding shares of such class or classes, present in person or represented by
proxy, shall constitute a quorum entitled to vote on that matter, the
affirmative vote of the majority of shares of such class or classes present in
person or represented by proxy at the meeting shall be the act of such class,
unless otherwise provided in the Certificate of Incorporation.
SECTION 6. Inspector of Election. The Board of Directors, in advance
of any meeting, may, but need not, appoint one or more inspectors of election to
act at the meeting or any adjournment thereof. If an inspector or inspectors are
not so appointed, the person presiding at the meeting may, but need not, appoint
one or more inspectors. In case any person who may be appointed as an inspector
fails to appear or act, the vacancy may be filled by appointment made by the
directors in advance of the meeting or at the meeting by the person presiding
thereat. Each inspector, if any, before entering upon the discharge of his
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or her duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors, if any, shall determine the number of shares of
stock outstanding and the voting power of each, the shares of stock represented
at the meeting, the existence of a quorum, and the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the result, and do such acts
as are proper to conduct the election or vote with fairness to all Stockholders.
On request of the person presiding at the meeting, the inspector or inspectors,
if any, shall make a report in writing of any challenge, question or matter
determined by such inspector or inspectors and execute a certificate of any fact
found by such inspector or inspectors.
SECTION 7. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the 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 of the Corporation 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
filed with the minutes of proceedings of the Stockholders.
ARTICLE II
Board of Directors
SECTION 1. General Powers. The business, property and affairs of the
Corporation shall be managed by, or under the direction of, the Board of
Directors.
SECTION 2. Qualification; Number; Term; Remuneration. (a) Each
director shall be at least 18 years of age. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware.
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The number of directors constituting the entire Board shall be such number as
may be fixed from time to time by the Board of Directors or the stockholders.
One of the directors may be selected by the Board of Directors to be its
Chairman, who shall preside at meetings of the Stock holders and the Board of
Directors and shall have such other duties, if any, as may from time to time be
assigned by the Board of Directors. In the absence of formal selection, the
President of the Corporation shall serve as Chairman. The use of the phrase
"entire Board" herein refers to the total number of directors which the
Corporation would have if there were no vacancies.
(b) Directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing Committees may be allowed like compensation for attending
Committee meetings.
SECTION 3. Quorum and Manner of Voting. Except as otherwise provided
by law, a majority of the entire Board of Directors shall constitute a quorum. A
majority of the directors present, whether or not a quorum is present, may
adjourn a meeting from time to time to another time and place without notice.
The vote of the majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors. When a meeting is
adjourned to another time or place, whether or not a quorum is present, 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. At the adjourned
meeting, the Board of Directors may transact any business which might have been
transacted at the original meeting. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn the
meeting, from time to time, without notice other than announcement at the
meeting, until a quorum is present.
SECTION 4. Places of Meetings. Meetings of the Board of Directors
shall be held at such times and such
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place as may be fixed from time to time by resolution of the Board of Directors,
or may be specified in the notice of meeting.
SECTION 5. Annual Meeting. At the next regular meeting following the
annual meeting of Stockholders, the newly elected Board of Directors shall meet
for the purpose of the election of officers and the transaction of such other
business as may properly come before the meeting.
SECTION 6. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times as the Board of Directors shall from time
to time by resolution determine. After the place and time of regular meetings of
the Board of Directors shall have been determined and notice thereof shall have
been once given to each member of the Board of Directors, regular meetings may
be held without further notice being given.
SECTION 7. Special Meetings. Notice of the date, time and place of
each special meeting shall be mailed by regular mail to each director at his
designated address at least six days before the meeting; or sent by overnight
courier to each director at his designated address at least two days before the
meeting (with delivery scheduled to occur no later than the day before the
meeting); or given orally by telephone or other means, or by telegraph or
telecopy, or by any other means comparable to any of the foregoing, to each
director at his designated address at least 24 hours before the meeting. The
notice of the special meeting shall state the general purpose of the meeting,
but other routine business may be conducted at the special meeting without such
matter being stated in the notice.
SECTION 8. Organization. At all meetings of the Board of Directors,
the Chairman or in the Chairman's absence or inability to act, the President, or
in the President's absence, a Chairman chosen by the directors, shall preside.
The Secretary of the Corporation shall act as secretary at all meetings of the
Board of Directors when present, and, in the Secretary's absence, the presiding
officer may appoint any person to act as Secretary.
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SECTION 9. Resignation. Any director may resign at any time upon
written notice to the Corporation and such resignation shall take effect upon
receipt thereof by the Chairman, the President or Secretary, unless otherwise
specified in the resignation.
SECTION 10. Vacancies. Unless otherwise provided in these By-Laws,
vacancies on the Board of Directors, whether caused by resignation, death,
disqualification, removal, an increase in the authorized number of directors or
otherwise, may be filled by the affirmative vote of a majority of the remaining
directors, although less than a quorum, or by a sole remaining director.
SECTION 11. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all the directors consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors.
SECTION 12. Electronic Communication. Any member or members of the
Board of Directors may participate in a meeting of the Board of Directors by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear and speak to each other.
ARTICLE III
Committees
SECTION 1. Appointment. The Board of Directors 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 of Directors may designate one or more directors as alternate members of
any Committee, who may replace any absent or disqualified member at any meeting
of the Committee. Any such Committee, to the extent provided in the resolution,
shall have and may exercise the powers of the Board of Directors in the
management of the business and
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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 shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors.
SECTION 2. Procedures, Quorum and Manner of Acting. Each Committee
shall fix its own rules of procedure, and shall meet where and as provided by
such rules or by resolution of the Board of Directors. Except as otherwise
provided by law, the presence of a majority of the then appointed members of a
Committee shall constitute a quorum for the transaction of business by that
Committee, and in every case where a quorum is present the affirmative vote of a
majority of the members of the Committee present shall be the act of the
Committee. Each Committee shall keep minutes of its proceedings, and actions
taken by a Committee shall be reported to the Board of Directors.
SECTION 3. Action by Written Consent. Any action required or
permitted to be taken at any meeting of any Committee of the Board of Directors
may be taken without a meeting if all the members of the Committee consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Committee.
SECTION 4. Electronic Communication. Any member or members of a
Committee of the Board of Directors may participate in a meeting of a Committee
by means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear and speak to each other.
SECTION 5. Termination. In the event any person shall cease to be a
director of the Corporation, such person shall simultaneously therewith cease to
be a member of any Committee appointed by the Board of Directors.
ARTICLE IV
Officers
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SECTION 1. Election and Qualifications. The Board of Directors at
its first meeting held after each annual meeting of Stockholders shall elect the
officers of the Corporation, which shall include a President and a Secretary,
and may include, by election or appointment, a Chairman of the Board, one or
more Vice-Presidents (any one or more of whom may be given an additional
designation of rank or function), a Treasurer and such Assistant Secre taries,
such Assistant Treasurers and such other officers as the Board of Directors may
from time to time deem proper. Each officer shall have such powers and duties as
may be prescribed by these By-Laws and as may be assigned by the Board of
Directors or the President. Any two or more offices may be held by the same
person.
SECTION 2. Term of Office and Remuneration. The term of office of
all officers shall be until their respective successors have been elected and
qualified or their earlier death, resignation or removal. The remunera tion of
all officers of the Corporation may be fixed by the Board of Directors or in
such manner as the Board of Directors shall provide.
SECTION 3. Resignation; Removal. Any officer may resign at any time
upon written notice to the Corporation and such resignation shall take effect
upon receipt thereof by the President or Secretary, unless otherwise specified
in the resignation. Any officer shall be subject to removal, with or without
cause, at any time by the Board of Directors. Any vacancy in any office shall be
filled in such manner as the Board of Directors shall determine.
SECTION 4. Powers and Duties of Officers.
(a) The Chairman of the Board of Directors, if there be one, shall
preside at all meetings of the Board of Directors and shall have such other
powers and duties as may from time to time be assigned by the Board of
Directors. The Chairman of the Board of Directors, if there be one, shall be the
chief executive officer of the Corporation and shall preside at all meetings of
the Stockholders and the Board of Directors and shall have general management of
and supervisory authority over the property, business and
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affairs of the Corporation and its other officers. The Chairman of the Board may
execute and deliver in the name of the Corporation powers of attorney,
contracts, bonds and other obligations and instruments, and shall have such
other authority and perform such other duties as from time to time may be
assigned by the Board of Directors. The Chairman of the Board shall see that all
orders and resolutions of the Board of Directors are carried into effect and
shall perform such additional duties that usually pertain to the office of chief
executive officer.
(b) If there be no Chairman of the Board, the President shall be the
chief executive officer and shall exercise the powers listed in (a) above.
Otherwise, the President may execute and deliver in the name of the Corporation
powers of attorney, contracts, bonds and other obligations and instruments, and
shall have such other authority and perform such other duties as from time to
time may be assigned by the Board of Directors or the Chairman of the Board.
(c) A Vice President may execute and deliver in the name of the
Corporation powers of attorney, contracts, bonds and other obligations and
instruments, and shall have such other authority and perform such other duties
as from time to time may be assigned by the Board of Directors, the Chairman of
the Board or the President.
(d) The Treasurer shall in general have all duties and authority
incident to the position of Treasurer and such other duties and authority as may
be assigned by the Board of Directors, the Chairman of the Board or the
President. The Treasurer 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 or at the direction of the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, the Chairman of the Board or the President,
and shall render, upon request, an account of all such transactions.
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(e) The Secretary shall in general have all the duties and authority
incident to the position of Secretary and such other duties and authority as may
be assigned by the Board of Directors, the Chairman of the Board or the
President. The Secretary shall attend all meetings of the Board of Directors and
all meetings of Stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose. The Secretary shall give, or cause to be
given, notice of all meetings of the Stockholders and special meetings of the
Board of Directors. The Secretary shall have custody of the seal of the
Corporation and any officer of the Corporation shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested by
the signature of the Secretary or any other officer.
(f) Any assistant officer shall have such duties and authority as
the officer such assistant officer assists and, in addition, such other duties
and authority as the Board of Directors, the Chairman of the Board or President
shall from time to time assign.
ARTICLE V
Contracts, Etc.
SECTION 1. Contracts. The Board of Directors may authorize any
person or persons, in the name and on behalf of the Corporation, to enter into
or execute and deliver any and all deeds, bonds, mortgages, contracts and other
obliga tions or instruments, and such authority may be general or confined to
specific instances.
SECTION 2. Proxies; Powers of Attorney; Other Instruments. (a) The
Chairman, the President, any Vice President, the Treasurer, the Secretary or any
other person designated by any of them shall have the power and authority to
execute and deliver proxies, powers of attorney and other instruments on behalf
of the Corporation in connection with the execution of contracts, the purchase
of real or personal property, the rights and powers incident to the ownership of
stock by the Corporation and such other situations as the
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Chairman, the President, such Vice President, the Treasurer or the Secretary
shall approve, such approval to be conclusively evidenced by the execution of
such proxy, power of attorney or other instrument on behalf of the Corporation.
(b) The Chairman, the President, any Vice President, the Treasurer,
the Secretary or any other person authorized by proxy or power of attorney
executed and delivered by any of them on behalf of the Corporation may attend
and vote at any meeting of stockholders of any company in which the Corporation
may hold stock, and may exercise on behalf of the Corporation any and all of the
rights and powers incident to the ownership of such stock at any such meeting,
or otherwise as specified in the proxy or power of attorney so authorizing any
such person. The Board of Directors, from time to time, may confer like powers
upon any other person.
ARTICLE VI
Books and Records
SECTION 1. Location. The books and records of the Corporation may be
kept at such place or places as the Board of Directors or the respective
officers in charge thereof may from time to time determine. The record books
containing the names and addresses of all stockholders, the number and class of
shares of stock held by each and the dates when they respectively became the
owners of record thereof shall be kept by the Secretary as prescribed in the
By-Laws or by such officer or agent as shall be designated by the Board of
Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and all
other corporate notices may be delivered personally or mailed to each
Stockholder at the Stockholder's address as it appears on the records of the
Corporation.
SECTION 3. Fixing Date for Determination of Stockholders of Record.
(a) In order that the Corporation
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may determine the Stockholders entitled to notice of or to vote at any meeting
of Stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and which
record date shall not be more than 60 days nor less than 10 days before the date
of such meeting. If no record date is fixed by the Board of Directors, 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 Stock holders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
(b) 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 not contemplated by paragraph (a) of this Section 3, the Board of
Directors 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 of Directors adopts
the resolution relating thereto.
ARTICLE VII
Certificates Representing Stock
SECTION 1. Certificates; Signatures. The shares
of the Corporation shall be represented by certificates,
provided that the Board of Directors of the Corporation may
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provide by resolution or resolutions that some or all of any or all classes or
series of its stock shall be uncertifi cated shares. Any such resolution shall
not apply to shares represented by a certificate until such certificate is
surrendered to the Corporation. Notwithstanding the adop tion of such a
resolution by the Board of Directors, every holder of stock represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate, signed by or in the name of the Corporation by
the Chairman or Vice-Chairman of the Board of Directors, or the President or any
Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of the Corporation, representing the number of shares
registered in certificate form. Any or all of the signatures on any such
certificate may be a fac simile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
SECTION 2. Record Ownership. The name of the holder of record of the
shares represented thereby, with the number of such shares and the date of issue
thereof, shall be entered on the books of the Corporation. The Corporation shall
be entitled to treat the holder of record of any share of stock as the holder in
fact thereof, and accordingly shall not be bound to recognize any equitable or
other claim to or interest in any share on the part of any other person, whether
or not it shall have express or other notice thereof, except as required by
Delaware Law. The Board of Directors shall have power and authority to make all
such rules and regulations as it may deem expedient concerning the issue,
transfer and registration of certificates representing shares of the
Corporation.
SECTION 3. Transfer of Record Ownership. Transfer of stock shall be
made on the books of the Corpora tion only by direction of the person named in
the certifi cate or such person's attorney, lawfully constituted in writing, and
only upon the surrender of the certificate
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therefor and a written assignment of the shares evidenced thereby, which
certificate shall be canceled before the new certificate is issued.
SECTION 4. Fractional Shares. The Corporation may, but shall not be
required to, issue certificates for fractions of a share where necessary to
effect authorized transactions, or the Corporation may pay in cash the fair
value of fractions of a share as of the time when those entitled to receive such
fractions are determined, or it may issue scrip in registered or bearer form
over the manual or facsimile signature of an officer of the Corporation or of
its agent, exchangeable as therein provided for full shares, but such scrip
shall not entitle the holder to any rights of a Stockholder except as therein
provided.
SECTION 5. Lost, Stolen or Destroyed Certificates. The Corporation
may issue a new certificate in place of any certificate theretofore issued by
it, alleged to have been lost, stolen or destroyed, and the Board of Directors
may require the owner of any lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to indemnify the
Corporation 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
any such new certificate.
SECTION 6. Transfer Agents; Registrants; Rules Respecting
Certificates. The Board of Directors may appoint, or authorize any officer or
officers to appoint, one or more transfer agents and one or more registrars. The
Board of Directors may make such further rules and regula tions as it may deem
expedient concerning the issue, trans fer and registration of stock certificates
of the Corporation.
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ARTICLE VIII
Dividends
Subject to the provisions of Delaware Law and the Certificate of
Incorporation, the Board of Directors shall have full power to declare and pay
dividends on the capital stock of the Corporation. Before payment of any
dividend, there may be set aside out of any funds of the Corporation available
for dividends such sum or sums as the Board of Directors from time to time, in
its absolute discretion, may determine for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
ARTICLE IX
Ratification
Any transaction, questioned in any lawsuit on the ground of lack of
authority, defective or irregular execu tion, adverse interest of director,
officer or Stockholder, non-disclosure, miscomputation, or the application of
improper principles or practices of accounting, may be ratified before or after
judgment, by the Board of Directors or by the Stockholders, and if so ratified
shall have the same force and effect as if the questioned transaction had been
originally duly authorized. Such ratification shall be binding upon the
Corporation and its Stockholders and shall constitute a bar to any claim or
execution of any judgment in respect of such questioned transaction.
ARTICLE X
Corporate Seal
The corporate seal shall be in form of a circular inscription which
contains the words "Corporate Seal" or such other text as the officer inscribing
such seal shall determine in such officer's sole discretion. The corporate seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise displayed or it may be manually inscribed.
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ARTICLE XI
Fiscal Year
The fiscal year of the Corporation shall be fixed, and shall be
subject to change, by the Board of Directors. Unless otherwise fixed by the
Board of Directors, the fiscal year of the Corporation shall end on the Saturday
closest to September 30.
ARTICLE XII
Waiver of Notice
Whenever notice is required to be given by these By-Laws or by the
Certificate of Incorporation or by law, a written waiver thereof, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
ARTICLE XIII
Amendments
By-Laws may be adopted, amended or repealed by either the Board of
Directors or the affirmative vote of the holders of a majority of the voting
power of all shares of the Corporation's capital stock then entitled to vote
generally in the election of directors.
ARTICLE XIV
Indemnification
SECTION 1. Right to Indemnification. 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 (a "Proceeding"),
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by reason of the fact (a) that he or she is or was a director or officer of the
Corporation, or (b) that he or she, being at the time a director or officer of
the Corporation, is or was serving at the request of the Corporation as a
director, officer, member, employee, fiduciary or agent of another corporation
or of a partner ship, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan (collec tively, "another
enterprise" or "other enterprise"), shall be indemnified and held harmless by
the Corporation to the fullest extent permitted by Delaware Law as the same
exists or may hereafter be amended (but, in the case of any such amendment, with
respect to alleged action or inaction occurring prior to 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, without limita tion, attorneys' and other
professionals' fees and expenses, claims, judgments, fines, ERISA excise taxes
or penalties and amounts paid in settlement) actually and reasonably incurred or
suffered by such person in connection therewith ("Losses"). Without diminishing
the scope of indemnifica tion provided by this Section 1, such persons shall
also be entitled to the further rights set forth below.
SECTION 2. Actions, Suits Or Proceedings Other Than Those By Or In
The Right Of The Corporation. Subject to the terms and conditions of this
Article, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any Proceeding (other than an action by or in
the right of the Corporation) by reason of the fact that such person is or was a
director or officer of the Corporation, or, being at the time a director or
officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, member, employee, fiduciary or agent of another
enterprise, against all Losses, actually and reasonably incurred or suffered by
such person in connection with such Proceeding if such person acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was unlawful. The
termination of any Proceeding by
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judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that the conduct
was unlawful.
SECTION 3. Actions, Suits Or Proceedings By Or In The Right Of The
Corporation. Subject to the terms and conditions of this Article, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any Proceeding by or in the right of the Corpora tion to
procure a judgment in its favor by reason of the fact that such person is or was
a director or officer of the Corporation, or being at the time a director or
officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, member, employee, fiduciary or agent of another
enterprise against all Losses actually and reasonably incurred or suffered by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner reasonably believed to be in
or not opposed to the best interests of the Corporation except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 4. Authorization of Indemnification. Any indemnification
under this Article (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that indemnifica
tion of a person is proper in the circumstances because such person has met the
applicable standard of conduct required by Section 1 or set forth in Section 2
or 3 of this Article, as the case may be. Such determination shall be made in a
reasonably prompt manner (i) by the Board of Directors by a
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majority vote of directors who were not parties to such action, suit or
proceeding, whether or not they constitute a quorum of the Board of Directors,
(ii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, (iii) by the stock holders or
(iv) as Delaware Law may otherwise permit. To the extent, however, that a
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' and other professionals' fees) actually
and reasonably incurred by such person in connection therewith, without the
necessity of authorization in the specific case.
SECTION 5. Good Faith Defined. For purposes of any determination
under Section 4 of this Article, a person shall be deemed to have acted in good
faith if the action is based on (a) the records or books of account of the
Corpora tion or another enterprise, or on information supplied to such person by
the officers of the Corporation or another enterprise in the course of their
duties or on (b) the advice of legal counsel for the Corporation or another
enterprise, or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant,
independent financial adviser, appraiser or other expert selected with
reasonable care by the Corporation or the other enterprise. The provisions of
this Section 5 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct.
SECTION 6. Proceedings Initiated by Indemnified Persons.
Notwithstanding any provisions of this Article to the contrary, the Corporation
shall not indemnify any person or make advance payments in respect of Losses to
any person pursuant to this Article in connection with any Proceeding (or
portion thereof) initiated against the Corporation by such person unless such
Proceeding (or portion thereof) is authorized by the Board of Directors or its
designee; provided, however, that this prohibition shall not apply to a
counterclaim, cross-claim or third-party claim brought in
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any Proceeding or to any claims provided for in Section 7 of this Article.
SECTION 7. Indemnification By A Court. Notwith standing any contrary
determination in the specific case under Section 4 of this Article, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to any court of competent jurisdiction for indemnification to
the extent otherwise permissible under Section 1, 2 or 3 of this Article. Notice
of any application for indemnification pursuant to this Section 7 shall be given
to the Corporation promptly upon the filing of such application.
SECTION 8. Losses Payable In Advance. Losses reasonably incurred by
an officer or director in defending any threatened or pending Proceeding may be
paid by the Corporation in advance of the final disposition of such Proceeding
if the Board of Directors determines that such advancement of expenses is
appropriate and upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
SECTION 9. Non-exclusivity and Survival of Indemnification. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
Certificate of Incorporation, any ByLaw, agreement, contract, vote of
Stockholders or of disinterested directors, or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise. The
provisions of this Article shall not be deemed to preclude the indemnification
of any person who is not specified in Section 1, 2 or 3 of this Article but whom
the Corporation has the power or obligation to indemnify under the provisions of
Delaware Law, or otherwise. The rights conferred by this Article shall continue
as to a person who has ceased to be a director or officer and shall inure to the
benefit of such person and the heirs, executors, administrators and other
comparable legal representatives of such person. The rights conferred in this
Article shall be enforceable as contract rights, and
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shall continue to exist after any rescission or restrictive modification hereof
with respect to events occurring prior thereto. No rights are conferred in this
Article for the benefit of any person (including, without limitation, officers
or directors of subsidiaries of the Corporation) in any capacity other than as
explicitly set forth herein.
SECTION 10. Meaning of certain terms in connection with Employee
Benefit Plans, etc. For purposes of this Article, references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; references to "serving at the request of the Corporation" shall
include any service as a director or officer of the Corporation which imposes
duties on, or involves services by, such director or officer, with respect to an
employee benefit plan, its participants or beneficiaries; and a person who has
acted in good faith and in a manner reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the Corporation"
as referred to in this Article.
SECTION 11. Insurance. The Corporation may, but shall not be
required to, purchase and maintain insurance on behalf of any person who 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, member, employee,
fiduciary or agent of another against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the power or
the obligation to indemnify such person against such liability under the
provisions of this Article.
Dated: March 15, 1995.
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